R v MAU [2007] QCA 115

Judgment (51 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] WILLIAMS JA: This is a reference to the Court of Appeal by the Attorney-General pursuant to s 672A of the Criminal Code.

[3]

[2] The petitioner was charged on an indictment presented to the District Court at Cairns on 28 February 2002 with one count of maintaining a sexual relationship with a child under the age of 16 years, seven counts of indecent dealing with a child under 16 years with a circumstance of aggravation, five counts of exposing a child under the age of 16 years to an indecent thing with a circumstance of aggravation, and three counts of procuring a child under the age of 16 years to commit an indecent act with a circumstance of aggravation. After a trial which commenced on 17 March 2003 he was convicted by the jury of one count of maintaining an unlawful sexual relationship with a child under the age of 16 years (count 1), five counts of indecent dealing with a circumstance of aggravation (counts 2, 9, 12, 15 and 16), and two counts of procuring a child to commit an indecent act with a circumstance of aggravation (counts 13 and 14). He was acquitted by the jury in respect of two counts of indecent dealing (counts 4 and 6), four counts (counts 3, 7, 8 and 10) of wilful exposure of a child to an indecent thing, and one count (count 5) of procuring a child to commit an indecent act. There were two complainant girls involved; S, the petitioner's stepdaughter, was aged 12 at material times and her friend JC was aged 13.

[4]

[3] By notice of appeal filed 3 April 2003 the petitioner appealed against his conviction. The grounds stated in the notice were as follows:

[5]

"2.1 The verdicts of guilty are perverse, in that the Jury's determination necessarily depended upon findings of credibility of the two complainants. The Jury's verdicts of not guilty in respect of eight counts is indicative of the fact that they had doubts regarding the credibility of the two complainants; and

2.2 The verdicts of guilty are unsafe and unsatisfactory."

[6]

[4] The matter was heard by the Court of Appeal (Davies JA, Cullinane J and Jones J) sitting in Cairns on 27 May 2003 and an ex tempore judgment was delivered on that day dismissing the appeal. As noted therein the only grounds actually argued by counsel who then appeared for the petitioner were inconsistency between the convictions and acquittals, and if that ground resulted in a successful appeal on either counts 2 or 9 the appeal had to succeed with respect to count 1. The reasoning of the Court of Appeal provided a sound basis for concluding that there was no inconsistency in the verdicts of the jury. There was no appeal against the conviction on counts 12 to 16 inclusive.

[7]

[5] Count 9 on the indictment alleged indecent dealing with S, a child under the age of 16 years of whom the petitioner was the guardian. That count involved the petitioner using a vibrator on S. Davies JA in delivering the reasons for judgment of the court said in relation to that count:

[8]

"The vibrator concerned was a white vibrator with a broken cable. ... The subject of count 9, the white vibrator, as I have already indicated did not vibrate when the appellant tried to use it on the complainant. It was discovered in the second top shelf of the cupboard in the appellant's bedroom. It was found to have a broken cable, no doubt explaining why it did not vibrate."

[9]

[6] That passage is quoted because it was at the centre of a major submission made on the hearing of the petition.

[10]

[7] Subsequently the petitioner filed an application seeking an extension of time in which to appeal against both the convictions and the sentences. That application came on for hearing before this Court (McMurdo P, Keane JA and Fryberg J) on 30 August 2005. On that occasion the applicant appeared on his own behalf. As revealed by the transcript of the proceedings on that day, counsel for the Director of Public Prosecutions pointed out that, having exhausted his rights of appeal, the only course open to the petitioner if he wished to challenge his convictions was by way of petition under s 672A of the Code. That provision was then referred to in broad terms in an exchange between a member of the court and the applicant. The application for an extension of time in which to appeal was dismissed for reasons delivered by Keane JA. Essentially the court applied Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 435 and held that the statute conferred only one right of appeal. There was no reference in those reasons to s 672A.

[11]

[8] In a letter signed by present counsel for the petitioner, addressed to the Governor, and accompanying the petition, it was asserted that the petition had been "prepared at the request of the Court of Appeal". Further in the body of the petition it was asserted that during argument before the Court of Appeal on 30 August 2005 "the Court after hearing submissions by [counsel for the Director] adjourned the hearing and recommended that the petitioner apply pursuant to s 672A". Both those assertions are false. It is clear from a perusal of the transcript and reasons that this Court on 30 August 2005 neither requested the presentation of a petition nor recommended the presentation of a petition. Nothing in the transcript of proceedings on 30 August 2005 or in the reasons for judgment on that date suggest that there was any issue about the petitioner's trial and convictions which, in the opinion of that court, ought to be further reviewed.

[12]

[9] Section 672A provides that after a petition has been presented, the Attorney-General may "refer the whole case to the Court and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted." That is what has happened here. The High Court considered in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 the equivalent of s 672A in the Criminal Code of Western Australia. This Court is required to consider the "whole case" in the way indicated by the High Court in that decision. The petition only challenges the convictions, and it is claimed the convictions are unsafe and unsatisfactory.

[13]

[10] As noted earlier the Court of Appeal on 27 May 2003 rejected a submission that there was some inconsistency in the verdicts of the jury. An argument along those lines was not addressed to this Court on the hearing of the petition, but I have for myself considered that ground in reviewing the whole of the case against the petitioner. It is significant that the jury returned a verdict of acquittal with respect to each of the four charges (counts 3, 7, 8 and 10) of exposing a child to pornographic material. The jury could well have been satisfied on the evidence of the two girls that they themselves obtained access to pornographic material either to satisfy their curiosity or obtain some gratification. As Davies JA noted in the earlier decision S was "a very precocious young girl" who "had herself obtained access to pornography without the intervention of the appellant." In the circumstances the jury may have had a doubt that it was only because of conduct on the part of the petitioner that the girls had seen pornographic material on the occasion in question. Counts 4, 5 and 6 on which a verdict of not guilty was returned involved only the petitioner and S and there was no evidence supporting that given by the complainant.

[14]

[11] With respect to counts 9, and 12 to 16 inclusive, there was some evidence supporting that of the complainant named in the charge. In counts 12 to 16 that evidence was from the other complainant girl, but the jury could well have regarded that as significant. With respect to count 9 there was evidence confirming the existence of a white vibrator and its availability to the petitioner. Count 2 was concerned with the first incident of sexual contact between S and the petitioner and the jury may well have considered the complainant's response to that touching convincing.

[15]

[12] In all the circumstances I am not persuaded that there was any inconsistency in the verdicts returned by the jury. That is my own conclusion but it is supported by the reasoning of this Court on 27 May 2003.

[16]

[13] Before this Court counsel for the petitioner attacked the conviction on count 9 in particular. If that conviction was not upheld it was asserted the conviction on count 1 had to be quashed. S, in giving evidence in relation to count 9, said that after she and the petitioner saw some pornographic material on a video he called her into his bedroom. He told her to lie on the bed and she then saw him "getting something out of the cupboard". She said that it "looked like a penis, and then he started rubbing my vagina with it." Then comes an answer highlighted by counsel for the petitioner in his submissions:

[17]

"And then, then I said - he stopped about two minutes later and I said, 'what were you doing?' I said - no, I said, 'what was that?' and he said it was a vibrator and I said, 'but isn't it supposed to vibrate?' and he said the battery cable was out. I said, 'but isn't it supposed to vibrate?' and he didn't answer."

[18]

[14] On about 6 September 2001, Constable McLeish conducted a search of the petitioner's residence. Amongst the items seized was a white vibrator. He said in the course of giving an answer that it had "a white lead and a controller for the vibrator I believe. It has got a broken lead in it." He said that was located in the master bedroom.

[19]

[15] In the course of his evidence in chief the petitioner said that a white vibrator was kept on the second top shelf of the wardrobe in his bedroom. He said it belonged to his wife, and went on to say: "The power pack or cord or whatever it is certainly doesn't belong to that vibrator ... that vibrator in fact does not have a cord. It has a battery go in the cylinder; it has a - a knob end which is the speed control and also the switch off and on button. It has no cords."

[20]

[16] The petitioner also gave evidence that S was not allowed into the bedroom of he and his wife. As the white vibrator was kept and subsequently located in a cupboard in that room the jury may well have considered that S would only have known about the white vibrator if it had been shown to her by the petitioner. Her evidence was that on the occasion in question the petitioner obtained the vibrator from a cupboard. In a supplementary submission to this Court it was asserted that it was possible that S (being precocious and sexually active) could have, out of curiosity, searched her mother's bedroom and seen the white vibrator and cord, thus providing a basis for the evidence she gave. That scenario was not put to S whilst she was in the witness box and the assertion now made is no more than speculation.

[21]

[17] Under cross examination S was not asked any questions about the use of the vibrator on her or the fact that it did not vibrate. She was not asked any questions about the lead said to be associated with the white vibrator. Specifically it was not put to her that the petitioner did not say in response to her question about the vibrator not vibrating that "the battery cable was out".

[22]

[18] On the hearing of the petition the contention of counsel for the petitioner was that the complainant S had fabricated count 9 because there could not have been a conversation between S and the petitioner wherein he associated the white vibrator with the cord. The contention was that as he knew they were not linked he could not have said that. It was only in the passage quoted above that the complainant S associated the white vibrator with the cord and it could hardly be said that, if it were the fact that the white vibrator and cord were not associated, that answer demonstrated that she must have fabricated the evidence as to what the petitioner did to her on that occasion.

[23]

[19] In any event, even if the white vibrator and cord were not associated, that does not mean that S was fabricating evidence or confused when she said that the petitioner gave as the reason for the vibrator not vibrating that the "battery cable was out".

[24]

[20] In my view there is nothing to support the submission of counsel for the petitioner that, because the petitioner gave evidence that the white vibrator and cord were not associated, the court should infer that the petitioner did not say what S said he did, and that in consequence the court should conclude that the evidence of S was a fabrication.

[25]

[21] Counsel for the petitioner also submitted that the decision of this Court of 27 May 2003 was flawed and should be over-ruled because Davies JA was confused about the relationship between the white vibrator and the cord. In my view the reference by Davies JA to the cord and the white vibrator being linked is of little or no consequence to the reasoning of that court and the conclusion it reached. The factual error, if it be so, does not demonstrate that there is error in the reasoning for concluding the conviction on count 9 should be upheld.

[26]

[22] Particularly having regard to the whole of the evidence adduced at trial I am not satisfied that any inaccuracy in the answer given by S with respect to the white vibrator undermines the safety of the verdict on count 9 or on any other count. The arguments addressed to this Court by counsel for the petitioner with respect to the white vibrator and the cord do not cause me in any way to regard any of the verdicts as unsafe or unsatisfactory.

[27]

[23] The offences in counts 14, 15 and 16 were alleged to have occurred between 12 of July and 31 of July 2001. Evidence admitted at the trial established with reasonable certainty that the events giving rise to those charges and also the events giving rise to counts 12 and 13 occurred on 28 July. That was the occasion when the second complainant, JC, was involved. Under cross-examination S said that the incident with the vibrator, count 9, occurred before that. Initially she said during cross-examination that JC stayed over "about three weeks after that", that is the incident with the vibrator. Then a few questions later she was asked, "you sure about that?" and she replied: "I don't think it was exactly three weeks; it was probably about two."

[28]

[24] It was accepted throughout the trial that all of the incidents giving rise to the charges occurred on a Saturday when the mother of S was at work. The mother gave evidence at the trial but was not asked any questions about her work roster; in other words, there was no evidence as to the Saturdays she did not work. Inferentially, no relevant incident could have occurred on a Saturday she was not working.

[29]

[25] It was asserted, and not challenged on the hearing of the petition, that defence counsel at trial had a box containing numerous papers claimed by the petitioner to be relevant to his defence. An affidavit was received on the hearing of the petition in which it was claimed that one of the documents in that box was a handwritten document, signed by the mother's employer, indicating the Saturdays she worked. Its accuracy was not challenged for purposes of this hearing. It showed that the mother worked (inter alia) on the following Saturdays: 2 June, 9 June, 23 June, 7 July, 21 July and 28 July. Significantly she did not work on 14 July, which was two weeks prior to 28 July. The submission addressed to this Court was that if defence counsel at trial had used that information available at that time it would have established that count 9 could not have occurred on 14 July, being two weeks prior to 28 July. It was then said that on the evidence of S that was the only day on which the offence could have occurred and therefore the conviction should be quashed. The argument depends entirely on accepting the evidence of S that it was exactly two weeks prior to 28 July that the incident with the vibrator occurred. That, in my view, is reading far too much into the evidence. As already noted S said it was "about three weeks" after the vibrator incident that JC was at the house, and then she said she did not think it was "exactly three weeks; it was probably about two".

[30]

[26] Even if one accepts that 28 July was fixed for the commission of counts 12 to 16, it is clear that there were a number of Saturdays about two or three weeks prior to that when the incident with the vibrator could have taken place.

[31]

[27] That submission, standing alone, does not cause me to have any concerns about the safety of the verdict on count 9.

[32]

[28] Counsel for the petitioner also referred to a further passage in the evidence of S which, in his submission, supported a conclusion that the incident with the vibrator must have occurred, if it occurred at all, on 14 July. Counsel at trial put to S that the mid-year school holidays that year commenced on Friday 22 June and school resumed on Monday 9 July; to that S responded "most probably". It was then put to her that during that period she spent "a couple of weeks" with her grandmother in Townsville. S responded that she could "remember I did visit my grandma, yes." The argument put to this Court was that in the light of that evidence count 9 could not have occurred on Saturday 23 June, or Saturday 7 July and that in consequence it must have occurred on 14 July, if it occurred at all. Again the argument depends upon reading the evidence in a particular way, and disregarding the generality of the answers given. For example, S could have spent about a fortnight with her grandmother during the period in question, but have returned to her home by Saturday 7 July.

[33]

[29] Even adding in that further argument to the material with respect to the Saturdays on which the mother worked, I am not persuaded that it makes the verdict of guilty on count 9 unsafe.

[34]

[30] Counsel sought to develop a similar argument with respect to count 2. S said at one point in her evidence that that incident occurred about two weeks before the incident with the vibrator. The contention was that if the work roster was tendered it would have shown that was not possible. But again the submission is without substance. The roster shows there were a number of Saturdays about two weeks before the date for count 9 when the mother was at work. The conviction on count 2 is not unsafe.

[35]

[31] None of those submissions really questions the verdicts with respect to counts 12 to 16 inclusive. The concentration on counts 2 and 9 was undoubtedly premised on the fact that, given the law as it then stood, if those convictions were set aside the conviction for maintaining a sexual relationship would have to be reviewed.

[36]

[32] Counsel for the petitioner submitted, particularly in relation to the convictions on counts 12 to 16, that the verdicts were unsafe because the jury obviously had some doubts regarding the credibility of the complainant girls given the counts on which verdicts of acquittal were returned. The summing up emphasised the importance of the jury's assessment of the credibility of the two complainants and that must have been foremost in the minds of the jurors. As noted above one can see a rational explanation for the difference in the verdicts. In the circumstances this is not a case where it must be said that there was such a doubt about the credibility of the evidence of the two complainants that the convictions cannot stand.

[37]

[33] In relation to the series of counts dealing with the events of 28 July there were inconsistencies in the evidence of S and JC. Those inconsistencies particularly related to the time of arrival and departure of another girl A. Depending on what evidence was accepted the incidents giving rise to the charges could have occurred either late morning or in the afternoon of 28 July. That was clearly a question for the jury and the discrepancy was not to be unexpected given that the trial took place some 18 months after the events in question. It is not unusual in cases of this type for there to be some discrepancy, particularly as to times, and when the discrepancy here is considered in the light of all of the evidence it does not cause me to conclude that the convictions were unsafe. Further, the fact that A was not called to give evidence did not in the circumstances give rise to a miscarriage of justice.

[38]

[34] Amongst the material in the box of papers available to defence counsel at trial was a Christmas card sent by S to her mother and the petitioner, probably for Christmas 2001. By then S had been placed in care away from her mother and the petitioner and the note on the Christmas card intimated that she missed them a lot. She also said therein that she cried a lot for them and would always love them.

[39]

[35] Counsel for the petitioner submitted that trial counsel failed in his duty to put the defence case fully by not tendering that Christmas card. In the circumstances it is difficult to see that the tendering of the card would have aided the defence case. All the evidence suggests that the sexual contact constituting the offences was consensual. On becoming aware that S was masturbating herself with a paintbrush handle her mother and the petitioner purchased (probably after 28 July) a blue vibrator for her to use. S did not initiate any complaint to the police about the conduct of the petitioner. The offences came to light because JC spoke to school friends about some of the incidents and the conduct in question ultimately was drawn to the attention of the police by a school teacher who had heard the stories. After that S and JC were interviewed and made the complaints which formed the basis of the charges. In those circumstances there was no apparent hostility between S and her mother in particular and the sending of the Christmas card was not surprising. The failure to tender it at trial, given the totality of the other evidence before the jury, does not cast any doubt on the correctness of the convictions.

[40]

[36] When JC was initially interviewed by the police she claimed that the petitioner, after the events giving rise to the charges, told her that he would "hurt" her and that she would "regret it" if she told anyone. At the committal hearing she admitted that that was a lie, and she again admitted to telling that lie during cross-examination before the jury. On that latter occasion she agreed with the proposition that she told that lie so she could get the petitioner into trouble. That was clearly a matter for the jury to take into consideration in determining the credibility of JC. The reason for telling the lie was not fully explored, and it could well have been put forward to explain why she made no complaint about the incidents. Again, as with S, there were grounds for concluding that despite her age she was ultimately a willing participant in some sexual experimentation.

[41]

[37] Much was made in the course of oral argument of the fact that trial counsel did not make greater use of the documents available to him in the box. It is always difficult to evaluate with hindsight the effect some piece of evidence may have had upon the jury. In the present case the fact that S, a 12 year old girl, was given a vibrator and lubricant by her mother and the petitioner and given instructions on its use would no doubt have coloured the view taken by the average juror of the evidence of the mother and the petitioner. In supplementary submissions to this Court it was asserted that was done by concerned parents acting in desperation because S was using a paintbrush to masturbate herself. That may or may not have been how the evidence was viewed at the trial, but in any event that was entirely a matter for the jury. Defence counsel had to make decisions as to whether or not evidence which was only peripheral to the charges was likely to have advanced the defence case. I am not persuaded that the failure of defence counsel to tender the items in question deprived the petitioner of a fair trial. Bearing in mind the test formulated in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 and Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 the failure to adduce any of the evidence in question did not result in a miscarriage of justice.

[42]

[38] In the petition an allegation was made that the signature of S on the statement she gave to police on 6 September 2001 was a forgery. In support of that the petitioner placed before the court a report from a Barbara Nichol who asserted she had been reporting as a document examiner for some 25 years. That report concluded that the signature on the statement of 6 September 2001 was "not consistent with the handwriting of a 13 year old child" and the signature bore no relation to the signature of S as a 16 year old.

[43]

[39] Significantly Nichol did not have for comparative purposes some other known signature of S as a 13 year old. Her report also does not set out the basis of the expertise of Nichol as a document examiner.

[44]

[40] The respondent tendered on the hearing of the petition an affidavit of Detective Senior Sergeant Horan who deposed that he was present at about 1.00am on the morning of 7 September 2001 and saw S sign the statement in question.

[45]

[41] Counsel for the petitioner did not develop this contention in the course of oral argument. It is difficult to see that, even if correct, the evidence of Nichol undermined the convictions. The written statement in question was not admitted into evidence before the jury, and it was the oral testimony of S which was critical. However, if it be relevant, there was no challenge at all to the affidavit of Horan which clearly establishes that S signed the document.

[46]

[42] Counts 1 to 13 on the indictment alleged the commission of an offence between 1 January 2001 and 31 July 2001. As the evidence unfolded the relevant time frame was much narrower prior to 28 July. Relying on R v Jacobs [1993] 2 Qd R 541 counsel for the petitioner contended that the petitioner was disadvantaged in meeting the charges because of the wide time frame alleged. However, as already indicated, there were many Saturdays in the couple of months up to 28 July when the mother of S was at work and there was ample opportunity for the petitioner to commit the offences as alleged by S. The petitioner gave evidence denying all incidents and it has not been demonstrated that he was denied a fair trial because of the wide time frame alleged in the indictment. Ultimately it became clear that counts 12 to 16 occurred on 28 July and so the petitioner had ample opportunity to meet those allegations. He was only convicted on two specific charges (counts 2 and 9) which did not occur on 28 July.

[47]

[43] As required I have considered the whole of the evidence placed before the jury and also had regard to what was said in the summing up. Although it was not the subject of any submission on the hearing of the petition, or on either of the other occasions when the matter was before this Court, it must be said that the trial judge could have summarised in more detail the defence case in the course of summing up to the jury. But in the context of the trial I am not persuaded that any deficiency in that regard deprived the petitioner of a fair trial. Ultimately the outcome depended on whether or not the jury was prepared to accept beyond reasonable doubt the evidence of the complainant girls in relation to each of the charges. That was emphasised on numerous occasions in the course of the summing up.

[48]

[44] Having reviewed the whole of the case, and having had regard in particular to the submissions of counsel for the petitioner, I have come to the conclusion that the verdicts of guilty were not unsafe and unsatisfactory.

[49]

[45] As the petition has been referred to this Court by the Attorney-General and must be treated as an appeal, the appropriate order is that the appeal be dismissed.

[50]

[46] MUIR J: I agree with the reasons of Williams JA and with his proposed orders.

[51]

[47] PHILIP MCMURDO J: I agree with Williams JA.

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