Court of Appeal (Qld)|2007-04-20|Before: McMurdo P, Holmes JA and Cullinane J, Separate, reasons for judgment of each member of the court, each concurring as to the, orders made
McMurdo P, Holmes JA and Cullinane J, Separate, reasons for judgment of each member of the court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – where the case turned on the conflicting evidence
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – where the case turned on the conflicting evidenceof the appellant and the complainant– whether the verdict wasunreasonableCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTSNOT RAISED IN COURTBELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERALPRINCIPLES – where defence counselwas prevented from cross-examiningwitnesses about their knowledge of a rumour – whether this was anexception to the ruleagainst hearsayCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTSNOT RAISED IN COURTBELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL
PRINCIPLES –whether the prosecutor
should have cross-examined a witness
about a prior inconsistent statement
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS
NOT RAISED IN COURT
BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES –
where no special warning was
given to the jury regarding the delayed complaint
or the age and culture of the complainant – whether a special warning was
required
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS
NOT RAISED IN COURT
BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES –
whether the directions given
by the trial judge as to the date of the offence
were correct
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – WHEN REFUSED – GENERALLY – whether the
sentence was within the appropriate
range for an offence against s 50BA
Crimes Act 1914 (Cth)
Evidence Act 1997 (Qld), s 18, s 130
Longman v R [1989] HCA 60
(1989) 168 CLR 79, cited
Palmer v The Queen
[1998] HCA 2
(1998) 193 CLR 1, distinguished
R v Jacobs [1993] 2 Qd R 541,
cited
Judgment (101 paragraphs)
[1]
Commonwealth Director of Public Prosecutions for the respondent
[2]
[1] McMurdo P: The appellant was convicted in the Supreme Court at Cairns on 30 October 2006 after a six day jury trial of one count of having sexual intercourse with a person under 16 years while outside Australia. He was sentenced to five and a half years imprisonment with a non-parole period of three years. He appeals against his conviction on a number of grounds including that the verdict was unreasonable and cannot be supported by the evidence. He has also applied for leave to appeal against his sentence.
[3]
[2] Before turning to the grounds of appeal, it is necessary to set out the evidence. The complainant, G, was born on 10 September 1987 in a remote village in Western Province, Papua New Guinea. She lived with her family and attended primary school. The offence was said to have occurred just after her 14th birthday and before 16 September 2001 at Port Moresby, Papua New Guinea. She met the appellant at an isolated tourist resort in Western Province during the 2000 Christmas holidays when she was visiting her aunt B, who ran the trading store there. The appellant was a pilot in his fifties who delivered cargo and passengers to the resort. Her father was the principal traditional landowner around the resort. Her relatives also ran the trading store in her village. A company, originally associated with Brian Brumley, owned the resort and the trading stores.
[4]
The complainant, G, gave evidence that she flew with the appellant on two occasions during 2001 from her village to Port Moresby. The first occasion was in March so that she could have her photograph taken for a passport. She stayed with the appellant's (adopted) daughter, Caroline Martens. The next day she had her photo taken and she filled out forms for the passport. She stayed in Port Moresby two nights and the next day the appellant flew her back to her village.
[5]
[3] The appellant next flew her from her village to Port Moresby on a school day between 10 and 16 September 2001. She celebrated her birthday (10 September) before leaving and she was in Port Moresby for Papua New Guinea's national independence day celebrations (16 September). She was in school when her mother arrived and told her that her father wanted her to fly to Port Moresby with the appellant. Her mother accompanied her to the village airstrip for the flight after they first collected her belongings from home. When they landed they travelled in the appellant's car to his premises in suburban Korobosea. She showered and they travelled together to "the party place". After half an hour she and the appellant returned to his home. On the way, they discussed sleeping arrangements. She asked him if he was taking her to her father who was staying with her uncle, Dr T, in another suburb of Port Moresby. The appellant said he was not. When they arrived back at the appellant's home she asked where she was to sleep. He pointed to a bedroom and said that they would sleep there. On the way from the party to his home he said that he was going to marry her. He made up the bed and was lying on it. She sat on a chair in the dining room. He asked her whether she was going to sleep. Later she walked into his room and went to sleep beside him. He grabbed her, undressed her, unzippered his trousers and had sex with her. He put his penis in her vagina. After a while he removed his penis, rolled over and ejaculated. She got up and put her clothes on. She was bleeding from her vagina. She had not had sexual intercourse before. She then slept on the timber floor. There was no electric light in the premises but the appellant lit a candle.
[6]
[4] In the morning he acceded to her request to take her to her father at her uncle's place and she joined her cousins. She stayed at her uncle's home for three weeks before flying home on a commercial flight. She made no complaint to her parents or her cousins about what happened.
[7]
[5] She next saw the appellant when he visited her at school and showed her her passport. He asked if she was coming with him to school in Cairns. She declined. He said he would keep her passport.
[8]
[6] In cross-examination she was shown a photograph which she agreed was her passport photograph taken in 2001. Handwriting on the back of the photograph recorded her name and the date "1 August 2001". She maintained that she had first travelled to Port Moresby with the appellant to have her photograph taken and complete the passport application in March, not August 2001, during her first term school holiday.
[9]
[7] She agreed she made no complaint to anyone about the appellant's conduct until she spoke to her aunt B about a year later, even though she was close to her parents and her cousins in Port Moresby. Before she was questioned by police she had told no-one that she had full sex with the appellant and the only person to whom she made a more limited complaint was her aunt B. She did not make a complaint to police.
[10]
[8] Instead, police officer Kally Pamuan contacted her in December 2003 and she gave him a signed statement about the appellant's conduct. He told her to go to the police station and asked her questions in English about the appellant. She initially told him that she first travelled with the appellant to Port Moresby during the term 2 school holidays. She had difficulty communicating with police officer Pamuan because he was a male. He suggested things to her and she agreed with them. She agreed she said in her statement that on the second trip to Port Moresby she and the appellant travelled from the airport to his daughter Caroline's house and the three of them were at "the party place" and that she was watching TV at the appellant's home. She agreed in cross-examination at trial, however, that there was no electricity at the premises. Her statement recorded that the appellant grabbed her and said, "You're going to be my wife"; she struggled but he overpowered her and carried her to the bed; threw her on the bed; said, "I'm going to be your husband and I will put up a business for you and your daddy." Her statement was different from her evidence at trial but the statement was not really her words. Police officer Pamuan did not tell her that the appellant's former wife, Raina Martens, had been in contact with him or anybody else to get the appellant into trouble. Some of the statement was her words, but some of it was made up by the police officer.
[11]
[9] She knew nothing about the suggestion that the police investigation of the appellant was some type of payback or that traditional land holders believed the resort owed them money. She agreed she met Raina Martens on one of the two trips to Port Moresby with the appellant. The complainant was sitting in the front seat of the appellant's car and his daughter, Caroline, was in the back. Raina was waiting on the side of the road for a bus and became very angry. The complainant got out of the front and sat in the back with Caroline; Raina got into the front.
[12]
[10] She did not remember whether there was a security gate around the appellant's premises nor whether, when they returned on the evening that they had sexual intercourse, someone had to be roused to unlock the gate. Caroline was living in one of the appellant's units on her first trip to Port Moresby with the appellant. Caroline was obviously pregnant; her stomach was protruding a little. She denied that Raina Martens was living in the other unit.
[13]
[11] When the complainant first arrived at the appellant's premises on the night of the offence the electricity was working and she had a shower, but when she returned after being at "the party place" there was no electricity. There was water at the premises and initially electricity but later in the night there was no electricity. She denied spending the night that the offence occurred at the house of Ian Proctor.
[14]
[12] She agreed that over the weekend before the trial she had twice read the statement she gave to Australian Federal Police officer Tania Stokes on 29 April 2004. She also then read the transcript of her evidence at the committal proceedings. Her father's brother, H, was married to S and they both lived in the area near the resort in Western Province. S is a member of the Kerema people. She did not know whether Raina Martens was a Kerema person; nor did she know of any relationship between S and Raina Martens. The complainant did not speak Kerema language. She was not frightened of Kerema people either for herself or for her relatives. If the Kerema told her to do something she did not feel she had to do it to avoid some harm to her or to her family. In her country, if a man has sex with the child of another, the conflict between the man and the parents of the child can be resolved by agreement to pay compensation. Compensation was not raised in this case. She was unaware of a law suit involving the Papua New Guinea government and a company in which the appellant had an interest; nor was she aware of a proposal that the appellant might buy the resort. She maintained that the appellant had sex with her at his premises on her second trip with him to Port Moresby.
[15]
[13] The complainant was later recalled for further cross-examination. She agreed that in her statement to police she said that it was a Saturday when she went to her uncle's house after the appellant had sex with her the previous night. It followed that the second flight with the appellant from her village to Port Moresby was on a Friday. She again maintained the truth of her evidence that the appellant had sex with her. She denied that she had made a false complaint in order to help, or to get a benefit for, somebody else. In re-examination she said nobody had suggested to her what she should say about what happened between her and the appellant.
[16]
[14] The appellant, through his counsel at trial, admitted that his legal representatives produced the complainant's passport to the court at the committal proceedings.
[17]
[15] The complainant's mother gave evidence confirming that the complainant, her eldest child, was born on 10 September 1987. She knew the appellant because he piloted a plane which flew between the resort, Daru and her village. The complainant flew with the appellant on two occasions. The second occasion was a school day when the complainant's father was in Port Moresby. The appellant told her that the complainant's father wanted the complainant to go to Port Moresby. She explained that the complainant was at school. He said she would have to go because it was her father's wish. She arranged for the complainant to leave school, pack her bag and travel on the plane with the appellant. A local policeman, Edo Ipai, was also on the plane.
[18]
[16] In cross-examination she agreed that the tourist resort was important to the surrounding area. She knew nothing about the relationship between those who owned it and the traditional land owners. She and her husband did not seek traditional compensation from the appellant arising from his sexual intercourse with the complainant. She knew that Raina Martens had been the appellant's wife; she had seen but never spoken to her. S did not tell her that she had spoken to Raina about the complainant. She knew that Raina and S were both Kerema people but she did not know if they knew each other. She maintained that the complainant flew twice to Port Moresby with the appellant but after persistent questioning she appeared to concede that she could not really remember. When asked whether she was frightened of Kerema people she responded, "Sometimes you feel scared of them. ... You know, there are some in Daru, they threaten people all like that ----- ... so we get scared of them. ... When we make them upset they sort of threaten us like that so we feel scared of them." She had not however been threatened by Kerema people in Daru. She knew one Kerema person in Daru called Margaret but Margaret was not a "wantok"[1] of Raina Martens. The Kerema people were "short tempered"; they can be threatening and can carry out their threats.
[19]
[17] In re-examination she affirmed that the complainant made two flights with the appellant from her village to Port Moresby. She could not remember the day of the week when these flights occurred.
[20]
[18] The complainant's father gave evidence that he was a traditional land owner in the area around the resort in Western Province. The appellant told him that, because of the traditional land owners' agreement with the resort, he was interested in sponsoring the complainant in high school in Cairns. The appellant flew him to Port Moresby in September 2001 where he stayed with a relative, Dr T, at the University of Papua New Guinea. He and the appellant attended to paperwork for the complainant's passport. During his second week in Port Moresby he saw Edo Ipai, the complainant and the appellant in the appellant's car at Dr T's place at about 5 pm. He was surprised to see the complainant and had not discussed her trip to Port Moresby with the appellant. The complainant was reluctant to go with the appellant when he asked to take her to his home. The father went with them. They dropped off Edo Ipai. When they arrived at the appellant's place the complainant refused to go in. The appellant then drove the complainant and her father back to Dr T's house. Before the complainant arrived in Port Moresby the appellant told the father that he was interested in marrying her. The father was upset by this and did not respond.
[21]
[19] In cross-examination he agreed that there had been disputes with the then owner of the resort, Mr Brumley, and the traditional land owners. On one occasion Mr Brumley was speared. He subsequently reached an agreement with the traditional land owners. At times items were stolen from the resort's trading store. The airstrip was closed once because the traditional land owners wanted to take over the resort and run it themselves. In 2002 the appellant negotiated with the traditional land owners about buying the resort. He understood that the appellant had won a court case against the Papua New Guinea government and that he would use the proceeds to purchase the resort. If the appellant became the owner of the resort he wanted the complainant's father to negotiate matters such as royalties, jobs for the villagers and also education for the children. It was in everyone's interest for the land owners and the resort owners to have a good relationship. He did not become aware of the allegations in the complainant's statement to police officer Pamuan until April 2004 when Australian Federal Police officer Tania Stokes came to his village to interview him. Because the complainant did not tell him what the appellant had done, he was not in a position to ask for compensation and he has never asked for it. He agreed he had earlier heard a rumour that something had gone on between the appellant and the complainant, but he did not consider compensation. He agreed he knew both S and Raina Martens and that they were both from Kerema. He did not know if they were related but they might be "wantoks".
[22]
[20] In re-examination he said that in traditional Papua New Guinea culture most parents do not talk to their children about sexual matters.
[23]
[21] The complainant's aunt B gave evidence that she knew the appellant as the pilot for the resort. In the 2002[2] Christmas holidays the complainant visited her at the resort where B was, by then, the manager. The appellant saw the complainant, said to B that she was a nice looking girl and enquired about her age. B responded that she was only a young girl and her brother's daughter. In cross-examination he agreed that prior to Mr Brumley's death the appellant was planning to buy into the resort.
[24]
[22] The complainant's female cousin, N, the daughter of H and S, gave evidence that the complainant visited Port Moresby in August 2001 and stayed with her uncle, Dr T. She ran into the complainant on the street. The complainant was accompanied by a light-skinned older girl who was pregnant.[3] She saw the complainant again in September 2001 when the appellant brought her to Dr T's house.
[25]
[23] SI, an adult male cousin of the complainant, gave evidence that in 2001 he saw the complainant at the home of her now-deceased uncle, Dr T, on the university campus in Port Moresby. The appellant arrived and said that he wanted to take the complainant because his wife gave birth. He said, "I want her to look after". The complainant said she did not want to go. SI and the complainant's other relatives present told him that he could not have her. He left and never returned.
[26]
[24] Senior constable Edo Ipai, who lived in the complainant's village, gave evidence that he travelled by plane to Port Moresby with the appellant and the complainant in September 2001. Also on the plane was Pastor Kingsley. It was late when they arrived in Port Moresby after refuelling at Daru and the appellant drove police officer Ipai and the pastor to their destinations in Port Moresby before driving off with the complainant. Police officer Ipai spent the night at Dr T's house at the university. The appellant drove the complainant there the next day.
[27]
[25] In cross-examination he agreed that he was a distant relative of the complainant. He had earlier said that there were only three people on the flight from Daru to Port Moresby but he was confused; he meant that there were three passengers excluding the captain; he was nervous when he gave evidence at the committal as it was his first time in Cairns. He agreed that he had not paid the appellant the 400 Kina for his plane fare. The flight was on a Friday.
[28]
[26] Police officer Kally Pamuan took a statement from the complainant on 1 December 2003 at Daru police station at the request of an Australian Federal Police officer. Officer Pamuan wrote down the complainant's story which she gave in her own words. He asked her whether the appellant ejaculated and she agreed; "ejaculate" was his word. The statement he took from the complainant contained mostly things said by her but sometimes he asked her questions to clarify matters or suggested things to her and she agreed to these suggestions. She read over the statement and signed it.
[29]
[27] Australian Federal Police officer Tania Stokes interviewed the complainant in her village in March 2004. She subsequently arrested the appellant in Cairns on 24 August 2004. Officer Stokes first became involved in the investigation in late 2003 when she was provided with the complainant's statement dated 1 December 2003. Officer Stokes spoke with Raina Martens by telephone on 20 May 2004.
[30]
[28] Australian immigration records showed that the appellant left Australia on 7 September 2001 and returned on 6 October 2001, on both dates through Horn Island.
[31]
[29] The appellant gave and called evidence. He was a senior airline pilot principally working in Papua New Guinea and Indonesia. His company, Pioneer Health Services Pty Ltd, effectively provided a flying doctor service for Papua New Guinea. He flew and owned a number of planes. His company had a 36 million Kina contract over a five year period with the Papua New Guinea government and employed approximately 300 staff. Because the government defaulted in payments, the company suspended its operations in early 1999 and commenced litigation. It was successful but the government continued to appeal and did not meet the court orders made against it. By the end of 2003 the company had Supreme Court orders in its favour against the government for damages and interest of about seven million Kina. The case was well publicised in Papua New Guinea.
[32]
[30] He had been flying into the Western Province resort for about 15 years. It was a deer hunting and barramundi fishing lodge located on or near several river bends, waterways and marshes next to a tiny village. The only regional industry was tourism. With the suspension of the flying doctor service he had more free time. He took up the manager, Mr Brumley's, offer to fly regularly, three or four times a week, transporting cargo and passengers. Mr Brumley had a government lease over the land which was surrounded by the traditional owners' land. The complainant's father was the head of the traditional owners. The local people made demands on the resort for personal use of its dinghies, for money, credit, flights and for a share in the resort. A portion of the resort airstrip was on the land of the complainant's father. Posts would often be placed across the airstrip where it entered the traditional land making very dangerous landing conditions.
[33]
[31] He negotiated with Mr Brumley to purchase the resort which the appellant considered had great potential. The purchase was never finalised because of the delay in receipt of the proceeds of his company's action. In late 2001 others purchased Mr Brumley's share in the resort. During 2001 he negotiated with the traditional owners, including the complainant's father. He was careful to treat them with respect so as not to damage his prospects of purchasing the resort; good relations were essential. In the course of negotiations the complainant's father asked what benefits the appellant would bring if he purchased the resort. He raised the issue of educating some children in Australia. The appellant eventually agreed to assist the complainant and her female cousin by sponsoring their costs of travel to and their schooling in Australia.
[34]
[32] With this in mind he set about acquiring all the relevant documentation but, because the girls did not have birth certificates, they needed statutory declarations about where and when they were born. They also needed photographs and the closest place to obtain these was Port Moresby. The best arrangement was for the complainant to travel to Port Moresby with him one Friday so that he could have the photographs taken on Saturday morning and she could return early the next week on his first flight back to the village. He flew the complainant out of her village one Friday. Both her parents were in the village and provided him with the necessary documentation.
[35]
[33] His standard procedure when completing flights for the day was to enter all the readings of the aircraft instruments into the aircraft's flight log and the flight crew's flight log in his pilot's log book. The Australian government required such a log book to be kept. By reference to a log book, which was tendered, he ascertained that he flew the complainant to Port Moresby on Friday, 10 August 2001. The log book was for a "P.A.-31" aircraft. It noted "Rotary wing in separate log book". It was apparently issued on 26 June 1998. The first flight records commenced 17 June 1999 in the appellant's handwriting and recorded flights on 10 August 2001 from the resort to the complainant's village, to Daru flying over Cape Blackwood and Kerema, to Port Moresby. He had intended that the complainant return with him on his next flight from Port Moresby to her village (recorded as 14 August in the log book). By reference to his log book, he said he next travelled to Port Moresby on 15 August with the complainant's father as a passenger and flew him back to his village on 17 August. The log book recorded that on Friday, 14 September 2001 he flew from the resort to Daru via the complainant's village and back to the resort. It did not record a flight to Port Moresby until 16 September 2001. The previous most recent flight to Port Moresby recorded in the log book was on 9 September 2001 originating from the resort. The complainant was not on that flight. She flew with him on only one occasion from her village to Port Moresby, the flight recorded in his log book on Friday, 10 August 2001.
[36]
[34] Other passengers on that flight included a policeman from the complainant's village, Edo Ipai, and a passenger associated with the church who left the plane in Daru. Edo Ipai did not have money to pay for the flight but promised he would arrange payment later. When they arrived in Port Moresby, Ipai "took off" and the appellant did not see him again. He did not drive Ipai to Dr T's house. He took the complainant to a Chinese restaurant for a meal. He did not take her to the home of her uncle, Dr T, because it was getting late and Dr T lived in a high-crime area. Because he spent much of his time at the resort, the appellant's Port Moresby residence was then a room rented from his friend, Ian Proctor. He knew there was plenty of accommodation for the complainant at the Proctor home. When they arrived, the Proctor premises were locked. Ian Proctor's "boys" told him that Ian was playing squash and he and the complainant drove to the nearby squash club. Mr Proctor agreed the complainant could stay the night at his home with the women. After about half an hour they drove to the Proctor home. The complainant watched TV with Mr Proctor's daughter, grandmother and another woman. He watched TV in his room and drank cold beer. He was very tired and after ten or 15 minutes he went to sleep. The complainant stayed in the lounge room watching TV with the women. The noise disturbed him and he could not sleep. He drank a second cold beer in his room in the dark. He remembered Mr Proctor's silhouette pass by his room and enter the toilet. He then fell asleep. He anticipated that the complainant would sleep on the traditional kunai mats which were in the lounge room. He denied having sexual intercourse with the complainant or touching her in any sexual way either on this night or at any other time.
[37]
[35] He slept in the next morning before driving the complainant to have her passport photograph taken. He produced and tendered a photograph of the complainant and negatives in a Fotofast package with the date "11-8-01" handwritten on it, and a receipt dated "11.08.01" for the amount "9.00". The receipt did not describe the merchant or the purchased item. One of the photographs was endorsed in handwriting as being of the complainant and was dated 16 August 2001. (The complainant's passport, tendered in the prosecution case, was issued on 24 August 2001.)
[38]
[36] After lodging all the necessary documents with the authorities in Port Moresby, he was in his car, almost stopped in traffic. The complainant was in the front passenger seat. His wife Raina Martens jumped out in front of the car with her shopping to stop him and get a lift. She opened the front passenger side door. When she saw the complainant she "went ballistic". She thought the complainant was a girlfriend. She said, "You fucking bastard, you've got a girlfriend in the car. I'll fix you." He denied that the complainant was anything more than a passenger and a client. Raina dragged the complainant out of the front and pushed her into the rear. She placed her shopping bags in the front and got in. The appellant drove to his units at Korobosea. During the trip Raina screamed at the complainant who remained silent and almost crouched in the corner of the back seat. When they arrived at his home Raina continued to scream at both him and the complainant. She called out to her relatives. A crowd gathered. He became anxious for the complainant's and his own safety. He tried to calm the situation. Raina picked up a rock and called out to her brother Charlie, "Grab his gun. Let's kill the bastard." The appellant retrieved his gun from under the front seat of his car and told the complainant to get in. Raina threw a rock at the car, smashing glass. He held the gun in the precautionary position with his finger ready on the trigger. The crowd backed off and he drove off with the complainant. Raina continued to throw rocks at his car, cracking the side window and windscreen. He dropped the complainant at Dr T's home and told her he would contact her to fly her home as soon as a seat became available on the plane. He returned the following Monday and advised her of a seat on the next flight but she did not want to go. When he arrived in her village her father greeted the plane. He flew her father to Port Moresby on the next return trip so that he could persuade her to return home. She again refused to return home.
[39]
[37] At this time Raina and her extended family lived on one side of his Korobosea premises. His daughter Caroline and her friends lived on the other side upstairs above his office. His office staff used the toilet in Caroline's unit. Because of his cash flow problem arising out of his dispute with the government, he could not pay the mortgage on the premises. Water and electricity were cut off at this time and the building was later sold by the bank. He had effectively separated from Raina whom he married in 1999 but they tolerated each other because of the shared accommodation arrangement and their young son. At trial, he did not know of his son's whereabouts; he had instituted divorce proceedings on grounds of cruelty; Raina had tried to stab him on two occasions.
[40]
[38] In cross-examination he agreed that around Christmas 2000 he had said to the complainant's aunt B words to the effect that the complainant was a nice looking girl. Because she was fair skinned he thought she may have had an expatriate father or mother. He denied telling Ian Proctor that he had had sex with her. A couple of weeks after he lodged the paperwork for her passport with the Immigration office he was notified that her passport had been issued and he collected it shortly afterwards. He agreed the only stamp in the log book indicating a mandatory biennial flight review was dated 28 March 2003. The log book contained no official stamps prior to that date.
[41]
[39] Ian Proctor gave evidence that he had known the appellant since 1997. He remembered a Friday night in 2001 about 9.30 or 10.00 pm when the appellant was in the company of a young woman, introduced to him as "G", at the squash club close to his home. The three of them left for his home where G joined his daughter and her grandmother and watched TV. He went to sleep in the end bedroom. The appellant was in the next bedroom closest to the lounge room. The ladies, including G, slept in the lounge on a mat on the floor. The appellant was tired and went to his bedroom alone. The house was not physically stable and anybody walking around the house could be heard, especially at night-time. He thought the date the complainant stayed over at his house was 10 August 2001. Both electricity and water were connected. At the appellant's units at Korobosea at that time there was no power and no water.
[42]
[40] In cross-examination he agreed that at the committal proceedings he had mistakenly given the name of the young woman with the appellant on this occasion as "Daphne" rather than "G". The prosecutor put to him that he had made the following inconsistent statement to an Australian Federal Police officer:
[43]
"Off the record Fred Martens is as guilty as hell. He admitted that crime. She was only 13 years old. He boasted about it. But I can't say that in court. He will not pay me my part of the civil matter. Don't get me wrong, I don't support him for what he did, but I just can't say that in court."
[44]
[41] Mr Proctor denied that he had said this to the officer; the officer had twisted his words. He elaborated that in Papua New Guinea important people:
[45]
"... are offered things, they are offered sex, people come to you with questions, come to you with requests in return for certain services. Now, sex is part of that quite regularly. You are offered sex quite regularly. The - remember the country is poor. My income is 20-30 times what the average Papua New Guinean is. Now, what happens is that you get offered these things quite regularly. Many men in - in Papua New Guinea take advantage of these situations. I didn't want to have to stand up in a Court like I have to do now and tell people that many Australian men, as - same as Papua New Guinean men and - and English - whatever - from wherever they come from - are taking advantage of these services. It's as simple as that. That's where it came from and that's - that's what I - what I was meaning."
[46]
[42] The prosecutor suggested that the reason Mr Proctor mentioned:
[47]
"... the civil matter off the record to the officer was because you couldn't afford to get him off - him being Martens - offside until the civil matter was completely finished with, that what's you felt the need to mention it off the record --------?-- Negative.
...
Is there any other conceivable reason why you'd feel the need to mention the civil matter off the record than that?-- Yes, there is, and that's what I told you before.
What's the reason?-- The reason is that I don't want to have to stand up in Court and call half - half the Australian men up there bloody sex - they're taking advantage of sexual favours.
Well, that's the explanation in relation to the cultural issue and sex with underage people. The civil matter's --------?-- I didn't say that -----
... I didn't say underage people."
[48]
[43] Defence counsel then objected. The judge stated that the prosecutor had made a comment and should reframe the question. The prosecutor apologised and continued:
[49]
"Your explanation, I suggest, plainly goes to the earlier phrase we've discussed of the off the record conversation, the cultural issue about sex with girls in New Guinea and businessmen. It doesn't go to the explanation why you'd raise the civil matter off the record, does it?-- It does.
How?-- Because I get embarrassed bloody - you know, I don't like calling half of the bloody people up there sex maniacs."
[50]
[44] In re-examination Mr Proctor said he had no recollection of the appellant saying that he had sex with the complainant. He owned ten per cent of Pioneer Health Services Pty Ltd and the appellant owned the remainder. They were joint signatories on that company's bank account.
[51]
[45] Caroline Martens, a 25 year old accounts clerk, gave evidence that although not a blood relative of the appellant, he was married to her mother under PNG custom and he had undertaken the responsibility of her up-bringing. She had been part of his household since she was nine years old. In 2001 she was pregnant with her boyfriend's child. She had been living with her boyfriend but they separated in August and she phoned the appellant because she needed accommodation. He arranged for her to live in a unit above his office. Raina and her relatives moved into the other unit. The units were protected by gates secured with chains and padlocks. Raina often kept the keys to the gates so that to gain access you had to rattle the padlock and chain until someone came and opened them. There was no electricity or water. She recounted an incident where the appellant arrived at the units with the complainant. Raina was arguing with the appellant, accusing him of having the complainant as his girlfriend. Raina was very angry and picked up a rock. She called out to her brothers. The appellant went back to his car and pulled out a gun. He told the complainant to get into the back seat and he drove away fast. She saw the complainant again a few days later and the complainant then stayed with her for one night. The complainant said nothing about anything happening with the appellant.
[52]
[46] In cross-examination Ms Martens said she remembered the date when the incident at the units occurred because it was just after her first visit to the baby clinic with her baby and the baby clinic card recorded that as 6 August 2001. She also kept a diary but it was lost in a national disaster. The complainant came to the Korobosea units at the end of August, almost September, and again on a second occasion around about 10 or 11 September. She agreed that at the committal proceedings she had said the first visit was in early September and the second visit was close to or during the independence weekend. She was content for the complainant to visit her because the complainant said she was not the appellant's girlfriend.
[53]
[47] The appellant contends that the guilty verdict was unreasonable and cannot be supported by the evidence because of the following factors. There was a lengthy delay in making and a flawed method of taking the complainant's statement. The complainant herself made no complaint to police and the police investigation did not commence for some years. The appellant's former wife, Raina Martens, had a motive to have the appellant charged and convicted because of the breakdown of their marriage and resulting dispute over custody of and access to their young son. The evidence of the appellant, Mr Proctor and Caroline Martens and the log book threw significant doubt on the reliability and truthfulness of the complainant's version of events. It followed, the appellant contends, that no properly instructed jury could have been satisfied of his guilt.
[54]
[48] The learned primary judge fairly explained the elements of the offence and summarised the defence case so that the jury must be taken to have well understood the issues for determination. It was not disputed that on the dates charged the complainant was under 16 years old and the appellant was an Australian citizen outside Australia. The judge explained to the jury that the case turned upon the conflicting direct evidence of the appellant and the complainant as to whether he had sex with her at Port Moresby in the period charged. His Honour reminded the jury that the complainant did not make a complaint until approached by police officers in late 2003. Only then was she asked to recall what happened over two years earlier in September 2001.
[55]
[49] The jury were entitled to find on the evidence I have set out in some detail that the complainant and her parents were truthful and reliable in recounting her two visits to Port Moresby with the appellant. In order to be satisfied of the appellant's guilt, it was not necessary for the jury to be satisfied beyond reasonable doubt that the complainant had her passport photo taken in Port Moresby in March rather than August. Indeed, the preponderance of evidence favoured a finding that the photograph was taken in mid-August 2001. The jury were entitled to accept that the complainant was confused as to the date of the passport photographs, especially as she was young, unsophisticated and was not asked to recall these details for some years. This did not, however, compel them to find that she was not truthful about the later crucial events around mid-September 2001.
[56]
[50] The inconsistencies between the complainant's statement to police officer Pamuan in December 2003 and her subsequent account in court were thoroughly investigated in cross-examination before the jury. She explained that she had difficulty in communicating with officer Pamuan who agreed that the words in her statement were not always hers. These inconsistencies were not such as to compel the jury to reject her evidence directly relating to the elements of the offence.
[57]
[51] Her evidence about the timing of her second visit with the appellant to Port Moresby received significant support from the evidence of her parents, her female cousin, N, and police officer Edo Ipai and also, to some extent, Caroline Martens. The complainant's version of these crucial matters also received some support from the evidence of the appellant's statements to others expressing interest in her and even a desire to marry her.
[58]
[52] Whilst there was ample evidence that the appellant's estranged wife, Raina Martens, had a motive to cause him harm, there was no clear evidence of any connection between Raina and the complainant or her family, even her Kerema aunt by marriage, S. The complainant consistently maintained the appellant had sex with her during the period charged. She did not know that Raina was a Kerema person but in any case she was not frightened of the Kerema. No one had asked the appellant for compensation. She denied making a false allegation against the appellant to help another and no one suggested she should. There was no evidence that she had been importuned to make a false allegation about the appellant.
[59]
[53] Although the appellant's evidence contradicting the complainant received apparent support from the log book, the jury were not compelled to accept that as an accurate and independent record of all his flights in all his planes at the relevant period from the complainant's village in Western Province to Port Moresby. It was a record made by the appellant apparently required to be kept by the Australian, not the Papua New Guinean, government. It commenced on 26 June 1998 and related to a "P.A.-31" aircraft. It contained the note "Rotary wing in separate log book". There was no independent entry until a biennial flight review stamp dated 28 March 2003, long after the disputed September 2001 flight. The log book did not compel the jury to have a doubt about the complainant's evidence that she had sexual intercourse with the appellant in Port Moresby after her 14th birthday on 10 September 2001 but before her country's national day on 16 September 2001.
[60]
[54] Mr Proctor did not impress as a reliable witness. It was by no means certain that the events he described involving the complainant and the appellant in fact involved her rather than "Daphne". His evidence seemed inconsistent with a prior statement to police. The jury may have considered that his ten per cent interest in the appellant's company meant that he had a financial interest in having the appellant acquitted and that this made his evidence generally unreliable.
[61]
[55] The evidence of Ms Caroline Martens, effectively his adopted daughter and a recipient of his patronage, in the end suggested that the appellant had an opportunity to commit this offence in the time frame charged. It did not compel the jury to reject the complainant's critical evidence as to the elements of the charge.
[62]
[56] After considering the whole of the evidence I am persuaded that the jury were entitled to accept the complainant's evidence that the appellant had sex with her in Port Moresby between 10 and 16 September and to be satisfied of his guilt beyond reasonable doubt.
[63]
Did the judge err in refusing to allow defence counsel to cross-examine witnesses about their knowledge of a rumour?
[64]
[57] As best I can apprehend the appellant's argument in this respect, is as follows. The judge erred in refusing to allow defence counsel to cross-examine witnesses about the complainant's Kerema aunt S (by marriage to her uncle, H) or others hearing a rumour from the appellant's estranged and embittered Kerema wife, Raina Martens, about a sexual relationship between the complainant and the appellant. Raina may have made false allegations to S or others about the appellant to get back at him and to prevent him from having custody of or access to their son. Raina constantly contacted police officers urging them to pursue the appellant on this charge whilst the complainant did not make a complaint until contacted by police some years later and asked leading questions. The judge should have allowed questioning of witnesses as to what they knew of rumours spread by Raina because it was possible that the witnesses, having heard the false rumours, accepted them as true and tailored their evidence accordingly, perhaps believing they may gain some commercial benefit from the appellant's successful litigation against the Papua New Guinea government, especially in the context of New Guinea's tribal and "wantok" system.
[65]
[58] These are unpersuasive reasons to gainsay the well-established rule against hearsay evidence. There was no evidence that cultural issues may have caused the complainant to make a false allegation against the appellant based on rumours spread by others. There was no evidence of any link between Raina Martens, a Kerema woman, and the complainant or the complainant's Western Province family. The complainant's aunt by marriage, S, was also a Kerema woman but there was no clear evidence that S and Raina were closely connected. S was not called in the prosecution case but there was no apparent reason why the defence could not call her if she was able to give evidence of a conspiracy between witnesses to make a false allegation against the appellant. The complainant maintained during cross-examination the truth of her version. She said that nobody had suggested that she make a false complaint against the appellant. Whilst the appellant was entitled to test the complainant's and other witnesses' evidence on this and other aspects in cross-examination and to address the jury on it, the judge was right to contain cross-examination to exclude inquiry into inadmissible hearsay rumours. Such cross-examination could take the defence case nowhere unless the rumours ultimately caused the complainant to make a false allegation against the appellant, something which she denied. I cannot understand why a false rumour would in any case be likely to cause her to make a false allegation The jury were reminded by the judge that the complainant did not complain to police or others about the appellant's conduct and was only approached by police to make a statement in December 2003, well over two years after the alleged offence. The avenue of cross-examination the appellant contends he should have been allowed to pursue would only have distracted the jury from their real task in determining whether the complainant was truthful and reliable in her evidence that the appellant had sex with her in Port Moresby on or about 14 September 2001. Had the questioning about rumours been permitted, there may have been a danger the jury might have thought there was some truth in them. The judge was right to close off this dangerous area of cross-examination. This ground of appeal fails.
[66]
[59] During the appeal hearing I became concerned that the defence emphasis on the hypothesis that rumours spread by Raina may have caused the complainant to give a false statement to police implicating the appellant may have distracted the jury from the central issue, whether they were satisfied beyond reasonable doubt that the complainant's evidence of sex with the appellant in Port Moresby on or about 14 September 2001 was truthful and reliable.
[67]
[60] The judge in his summation of the case told the jury that the appellant was presumed to be innocent and could be convicted only if the prosecution established his guilt. He did not have to give evidence and in doing so the burden of proof did not shift to him but remained with the prosecution. To convict, the jury must be satisfied beyond reasonable doubt of every element of the offence. They should:
[68]
"... dismiss all feelings of sympathy or prejudice, whether it is sympathy or prejudice against [the appellant] or anyone else. It is particularly important in this case because some of you have strong feelings about young people in overseas countries being exploited sexually. ... The important thing in this case is no such emotion has any part to play in your decision. You have to approach your duty dispassionately in deciding the case on the facts upon the whole of the evidence."
[69]
[61] His Honour observed that the case turned on some circumstantial evidence:
[70]
"To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it's necessary that guilt should not only be the rational conclusion that you reach, but it should be the only rational conclusion from the circumstances. So if in your consideration of all the evidence there is any reasonable conclusion consistent with innocence, it is your duty to find the defendant not guilty, and that simply follows from that requirement that guilt must be established beyond reasonable doubt."
...
[71]
The manner in which the prosecution and the defence have conducted this case means that all ... that is left for you to consider is did sexual intercourse occur between [the complainant] and [the appellant] between the 10th and 16th September 2001. To convict [the appellant], you must be satisfied beyond reasonable doubt that it did happen.
...
Various things have been hinted at. The vengeance of Raina getting back at [the appellant] because of their separation, the demands of [the complainant's] family in relation to the [resort] business and some sense of payback if they were aware that [the complainant] had been violated with. Some of this does not have any substance in the sense of specific allegations. You may or may not think some of these matters are speculative since it was never put to [the complainant] that she went out of her way to make a false complaint to the police at the suggestion of any person or persons.
The initial investigating police officer, Mr Pamuan, said he had no details of the offence before he sought to get them from [the complainant] when the complaint was made. But these are matters for you whether you accept that evidence or whether you, accepting other circumstances, can draw inferences. But inferences must be based on reason and it's not appropriate to draw inferences which are speculative or illusory.
Of more significance is [defence counsel's] submission of the bizarre nature of the allegation. Why would a person in [the appellant's] position, who has so much to gain by a friendly relationship with the [complainant's] family put at risk all of what he's trying to achieve by deflowering their daughter? He refers also to the other matters ..."
[72]
[62] In the redirections set out later in these reasons[4] his Honour again focussed the jury on the central issue for their consideration as being the reliability of the complainant's evidence and whether they were satisfied beyond reasonable doubt that the appellant and the complainant had sexual intercourse between 10 and 16 September 2001.
[73]
[63] In the light of those directions, I am satisfied the jury did not convict the appellant merely because they rejected the defence contention that rumours may have caused the complainant to provide false information to police about the appellant. I am confident the guilty verdict was based on their satisfaction beyond reasonable doubt of the truthfulness and reliability of the complainant's evidence about the elements of the offence charged. Importantly, there was no suggestion from the prosecutor or the judge that there was an obligation on the appellant to suggest some reason why the complainant would invent allegations against him: cf Palmer v The Queen.[5] My initial concerns are assuaged and I am satisfied that they provide no reason to set aside the jury's verdict.
[74]
Did the judge err in permitting the prosecutor to cross-examine defence witness Proctor about a prior inconsistent statement to police?
[75]
[64] The appellant contends that the judge should not have allowed Mr Proctor to be cross-examined as to his prior inconsistent statement to a Federal Police officer because it was unfair. The relevant passage, including re-examination, is set out earlier in these reasons.[6]
[76]
[65] The prosecutor forewarned defence counsel[7] that if Mr Proctor was called he planned to cross-examine him about this prior inconsistent statement. Although Mr Proctor denied making the statement so that the prosecution was entitled to prove it under s 18 Evidence Act 1997 (Qld) (subject to s 130 of that Act), the judge ultimately did not allow the prosecution to tender the police officer's statement or call the police officer to rebut Mr Proctor's denial.
[77]
[66] Unquestionably the cross-examination was damaging to Mr Proctor's credibility and to the appellant's case. It contained an inadmissible and unnecessary comment by the prosecutor for which the prosecutor immediately apologised. The cross-examination certainly undermined his credit, not only by suggesting he had made a prior inconsistent statement, but also because it was capable of demonstrating that he may have had a pecuniary interest in giving false testimony favourable to the appellant. But that was no reason to compel the judge to refuse to allow the cross-examination in the interests of fairness. The purpose of cross-examination is to test evidence so that the jury can decide whether or not to accept it. The appellant and his counsel knew that Mr Proctor's evidence would be attacked by the prosecution because of his alleged earlier inconsistent statement to police. They made a forensic decision to call him regardless. Had the judge not allowed the cross-examination, the jury would have been left with an incomplete view of Mr Proctor's accounts of relevant events. If the appellant's contention were correct, it would have the ludicrous effect of constraining a prosecutor from cross-examining if the cross-examination might damage the credit of the witness. This contention also fails.
[78]
Should the judge have warned the jury about the dangers associated with delay?
[79]
[67] The appellant contends the judge should have warned the jury about the difficulty for the appellant in conducting his defence because of the delay in bringing the complaint against him: Longman v R.[8] Alternatively, the appellant contends that, because of the cultural issues, the age of the complainant and the fact that she made no complaint, the judge should have warned of the special need to scrutinise her evidence with great care before acting on it.
[80]
[68] The judge considered that a special warning was not warranted because the delay was only of a few years. Furthermore, the conduct of the defence case here did not seem to have been especially hindered because of the delay. The appellant was able to produce receipts and flight log books to support his case. In any case, the complainant's evidence was supported in some aspects by other independent evidence: the appellant had taken an interest in her and offered to marry her; and the fact that she was in Port Moresby at the time when she says the appellant had sex with her was supported by the evidence of Edo Ipai, her female cousin, N, and Caroline Martens. I am not persuaded that the judge erred in not giving a Longman-type warning in this case.[9] This ground of appeal also fails.
[81]
Should the judge have directed the jury that to convict they must be satisfied beyond reasonable doubt that the offence occurred on the Friday between the dates charged on the indictment?
[82]
[69] The appellant contends that the judge erred in failing to direct the jury in accordance with R v Jacobs[10] that the prosecution case effectively was that the offence must have occurred on the Friday[11] between the dates alleged in the indictment (10 and 16 September 2001) and the jury could only convict if they rejected the log book evidence which established the appellant was not in Port Moresby that day and they were satisfied beyond reasonable doubt that the offence occurred that day. The appellant's contention in his written outline on this ground of appeal was ultimately:
[83]
"Accordingly His Honour should have directed the jury that if they had a reasonable [doubt] as to whether anything occurred between 10th September 2001 and 16th September 2001 they should acquit."
[84]
[70] The primary judge could not have made this clearer to the jury, stating:
[85]
"The manner in which the prosecution and the defence have conducted this case means that ... all that is left for you to consider is did sexual intercourse occur between [the complainant] and [the appellant] between the 10th and 16th September 2001. To convict [the appellant], you must be satisfied beyond reasonable doubt that it did happen."
[86]
"When I was talking about the elements of the offence, what you have to be satisfied beyond reasonable doubt about is that the offence occurred between the 10th and 16th of September 2001. ... But we're dealing - your focus is on that period between the 10th of September and the 16th of September. It doesn't particularly matter which day.
The defence have asked me to refer to the evidence firstly of the logbook which is before you and compare that with the evidence of [the complainant] who said that second trip was on a Friday, and the only relevant Friday is Friday, the 14th of September. It is a question of whether her recollection is reliable. It is a question whether you accept the logbook as being reliable because you heard that being challenged as well. But, in any event, even on the logbook that shows that [the appellant] was in Port Morseby [sic] on the 16th of September. So, you don't have to pinpoint a particular day of the week or a particular date, but you must be satisfied beyond reasonable doubt that if anything occurred, it occurred between those two dates. ..."
[87]
[72] Those directions were correct. This ground of appeal is not made out. It follows that the appeal against conviction fails.
[88]
[73] The notice of appeal states that the appellant desires to appeal against his conviction and sentence. None of the grounds of appeal nor the appellant's written or oral submissions contended that the sentence was outside the appropriate range or that the judge otherwise erred in law or fact in determining the sentence of five and a half years imprisonment with a non-parole period of three years.
[89]
[74] The appellant was a mature man of 56 years with no criminal history. The complainant had just turned 14 at the time of the offence. She was an unsophisticated village girl still at primary school in a remote part of Papua New Guinea. The maximum penalty was 17 years imprisonment. The appellant did not cooperate with the administration of justice and showed no remorse. His conduct was exploitative, predatory and despicable. It has had a very significant detrimental impact on the complainant. The offence required a salutary sentence for the purposes of general deterrence. I can see no reason to justify the grant of leave to appeal against sentence.
[90]
2. Application for leave to appeal against sentence refused.
[91]
[75] HOLMES JA: I agree with the reasons of McMurdo P and with the orders she proposes.
[92]
[76] CULLINANE J: I have read the reasons of McMurdo P in this matter and agree with those reasons and the orders proposed.
[93]
[1] The word "wantok" is Tok Pisin (Melanesian pidgin English spoken in Papua New Guinea) and means "close friend or relative".
[94]
[2] The appellant in his evidence refers to this conversation as occurring in the 2000 Christmas holidays (see these Reasons [38]) and it seems that "2002" is an error.
[95]
[3] It was common ground that this was Caroline Martens, the appellant's young adult adopted daughter.