R v MDP [2023] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION: R v MDP [2023] QCA 134

PARTIES: R / v / MDP / (appellant)

FILE NO/S: CA No 210 of 2021 / DC No 485 of 2020

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Cairns – Date of Conviction: 6 August 2021 (Morzone KC DCJ)

DELIVERED ON: 27 June 2023

DELIVERED AT: Brisbane

HEARING DATE: 16 May 2023

JUDGES: Mullins P and Morrison JA and Henry J

ORDER: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted at trial by a jury on charges of rape, indecent treatment of a child under 12 under care, maintaining a sexual relationship with a child and indecent treatment of a child under 16 under care – where the four grounds of appeal allege a miscarriage of justice, three founded on the trial judge’s directions and the fourth on alleged non-compliance with the rule in Browne v Dunn – where no miscarriage of justice occurred / CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – whether a miscarriage of justice was occasioned by the learned trial judge’s directions to the jury that occasions when the appellant had slapped the complainant on the bottom could be used as evidence of sexual interest by the appellant in the complainant – whether a miscarriage of justice was occasioned by the trial judge’s failure to direct the jury in relation to an out-of-court statement by the appellant which the prosecution relied upon as constituting an admission of guilt – whether a miscarriage of justice was occasioned by the alleged failure by the prosecution to comply with the rule in Browne v Dunn – whether a miscarriage of justice was occasioned by the trial judge’s directions to the jury that evidence of the complainant’s distressed condition at the time she made a preliminary complaint about the offending to her mother could be left to the jury as independent evidence supporting the complainant’s account / Criminal Code (Qld), s 668E / Criminal Law Amendment Act 1997 (Qld), s 113 / Evidence Act 1977 (Qld), s 132B / Evidence (Protection of Children) Amendment Act 2003 (Qld), s 40 / BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, distinguished / Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited / Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, followed / GBF v The Queen (2020) 271 CLR 537; (2020) 384 ALR 569; [2020] HCA 40, followed / HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered / Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited / Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited / R v Baskerville [1916] 2 KB 658, cited / R v Flannery [1969] VR 586; [1969] VicRp 72, cited / R v May [1962] Qd R 456, cited / R v McDougall [1983] 1 Qd R 89, cited / R v Roissetter [1984] 1 Qd R 477, cited / R v Sailor [1994] 2 Qd R 342; [1993] QCA 23, cited / R v SDQ [2022] QCA 91, cited / R v Stewart; Ex parte Attorney-General [1989] 1 Qd R 590, cited / R v W [1996] 1 Qd R 573; [1995] QCA 49, cited / R v Williams [2010] 1 Qd R 276; [2008] QCA 411, distinguished / Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL: B J Power KC for the appellant / A J Walklate, and T Papadimitriou, for the respondent

SOLICITORS: Jasper Fogerty Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P: I agree with Henry J.

2. MORRISON JA: I agree with the reasons of Henry J and the order his Honour proposes.

3. HENRY J: The appellant was convicted at trial by a jury in the District Court on all 16 counts of an indictment charging four counts of rape, six counts of indecent treatment of a child under 12 under care, one count of maintaining a sexual relationship with a child and five counts of indecent treatment of a child under 16 under care.¹

4. He appeals his conviction. Each of the four grounds of appeal are set out fully in the reasons below. Briefly, the first three grounds are founded on the trial judge’s directions on the topics of:

an implied admission;

bottom slapping as sexual interest;

distressed condition.

The fourth ground is founded on:

non-compliance with the rule in Browne v Dunn.

5. Each ground alleges a miscarriage of justice, not a wrong decision of any question of law, per s 668E(1) Criminal Code (Qld), apparently because they are founded on complaints not advanced below.

Ground 1 re implied admission

6. Ground 1 is:

“A miscarriage of justice was occasioned by the learned trial judge’s failure to direct the jury in relation to an out-of-court statement by the appellant which the prosecution relied upon as constituting an admission of guilt.”

7. The alleged offences were committed in the course of about five years against the female complainant when she was aged from seven to 12. The alleged offending commenced after the appellant had commenced living with the complainant’s mother and sisters when he commenced a relationship with the mother in 2014. The offending against the complainant was said to have occurred at various locations within the residences they lived in during that period.

8. The charge of maintaining a sexual relationship with the complainant covered the final 10 months of the offending when it had allegedly become more frequent and consisted of touching or rubbing the complainant’s breasts, touching or rubbing her vagina, putting his tongue inside her mouth, sucking her lip and sucking her vagina. The earlier alleged offending was charged as four counts of rape, two involving digital penetration, one involving penetration with the tongue and one involving penile penetration. There were also two charges of indecent treatment founded on him sucking the complainant’s vagina and one of attempting to procure her to commit an indecent act constituted by him exposing and requesting her to suck his penis.

9. The complainant’s younger sister gave evidence that some years before the end of the era of offending the complainant had told her the appellant was licking the complainant’s private parts at night, that it kept happening, that he sometimes kissed her and put his tongue in her mouth and that on one occasion he had poured a cup of water on her. The complainant’s eventual evidence of what occurred included distinct reference to an occasion when she had pretended to be asleep and the appellant had sucked her vagina and pushed the tip of his penis into her vagina, before then splashing water near her vagina, shaking her awake and telling her that she had “peed” herself.

10. The final alleged episode of sexual mistreatment occurred about a month before the complaint was made to the police.

11. The complaint to the police was made within days of some revelatory events which occurred on the night of 28 and morning of 29 October 2019. On that night the complainant’s mother had awoken and noticed the appellant was not in bed. She went looking for him and found him in the complainant’s bedroom where the lights were off and he was looking under the doona. The complainant’s mother asked him what he was doing and he replied he was looking for his watch. He purported to continue to search for it elsewhere and when they eventually returned to their bedroom she repeatedly asked him what he had been doing. He responded by asking, “What, do you think I’m touching the girls?”

12. The following morning the complainant’s mother told the complainant of what she had seen the night before and that prompted the complainant’s disclosure of what the appellant had been doing to her. A complaint was made to police thereafter.

“And you stayed that night and you said to her words to the effect of, “What do you think? I’m touching the girls”?--- That’s all on the outside, yeah. “What do you think I’m doing? Touching the girls?”

You said that because you thought she was really accusing you of that?--- Yeah.”

14. The Crown Prosecutor’s opening did not flag what, if any, inference he was going to invite the jury to draw from that feature of the confrontation between the complainant’s mother and the appellant. However, in his closing address the learned Crown Prosecutor submitted:

“Now, yes, [the complainant] said her mum was angry and yelling. [The complainant’s mother] said that didn’t occur. But don’t lose sight of the fact that people have different perceptions about what yelling is. But, importantly, not long after that, the defendant spontaneously asked [the complainant’s mother] if she thought he was touching the girls despite that not being discussed before. Use your commonsense. If nothing untoward had been happening, does it make sense that the defendant would spontaneously, without any prior discussion about the topic, ask his wife if she thought he was touching the girls. The Crown says, when you consider the circumstances, it was an admission. It was something on his mind because he’d been doing it.” (emphasis added)

15. It was not apparent nor explained how the comment evidenced an admission. It clearly was not a confession, so presumably the reasoning would have to involve an inference that it somehow exposed a consciousness of guilt of offending sexually against the complainant. But such an inference was unsustainable given the comment was obviously a response to how the appellant’s wife’s angry response to seeing what he was doing in the complainant’s bedroom exhibited suspicion of wrongdoing by him.

16. The notion that the comment could be used as an admission was not raised with the learned trial judge prior to the commencement of addresses in connection with what directions the judge may give. Nor was a direction sought in connection with it by the appellant’s counsel after the Crown Prosecutor had addressed as quoted above. Nor was any specific direction given on the topic in the trial judge’s summing up to the jury. Nor did the summary therein of counsel’s arguments make specific reference to the Prosecutor’s submission that the comment in question was an implied admission, it merely being noted:

“He referred to particular times, for example the oddity of looking for the watch, and how those things occurred in night-time when [the complainant] heard things like an alarm, and how then it evolved into the confrontation. Whether or not he had been touching the girls is something that Mr Dunkerton says to you it was a matter that the defendant raised, and to consider that in its context.”

17. Further, the innocuous nature of the comment was touched on in this way by his Honour’s summary of the appellant’s counsel’s arguments:

“He reminded you of that context, that circumstance of a heated argument. His off-the-cuff comment, he said to you, was made in frustration. That is, in relation to the touching of the girls. In respect of that, he said bear in mind that word, that it was plural, not one girl or another, as indicating that it was such a confrontation – a comment, and only a comment made in frustration, not an indication of anything else.”

18. The upshot is that the jury were not directed by the learned trial judge that they could use the appellant’s words as an implied admission or reminded of the prosecutor’s submission now complained of. It is not suggested the appellant’s response to his partner’s challenge was inadmissible, albeit that it had not been admitted on the basis it was an implied admission. Nor is it suggested that the response was so vulnerable to misuse as to of itself required a specific direction. The appellant’s complaint is that a special direction came to be required because of the Crown’s submission that the response was an admission. The flaw in the complaint is that it assumes the submission carried a significance which it did not have at the trial.

19. The inference that the appellant’s question of his partner was an admission had not been opened as an inference relied upon by the prosecution. Nor had it been explored in cross-examination with the appellant. To the contrary, a different inference was put, namely that he made the comment because he thought he was being accused of having touched the girls, a proposition with which the appellant agreed.

20. The force of the Prosecutor’s single sentence submission was therefore unaided by any earlier foundational build up to or signalling of it. It was also bereft of any accompanying or subsequent elaboration or explanation. The strong impression conveyed by perusal of the trial transcript is that it was a flimsy, isolated flourish, carrying no persuasive impact. It is doubtful the jury would have understood by it that the prosecution was arguing the appellant’s response to his partner’s challenge constituted an implied concession of guilt. In any event, it is implausible the jury would have regarded the comment as conveying anything other than offence at the suspicion of wrongdoing implicit in his partner’s angry reaction to what she saw. In short, there was no realistic risk of the submission causing the jury to misuse evidence, which was so obviously not an admission, as an admission.

21. Further, defence counsel did not raise the matter as an issue of concern, let alone press for a direction about it, after the conclusion of the learned Crown Prosecutor’s address. As was observed in GBF v The Queen,² the fact defence counsel did not seek a particular direction may support the conclusion the direction was not required. It does here. While such an omission might not provide such support if it is inexplicable, it was obviously explicable here. As things stood, the single sentence uttered during the Prosecutor’s closing address was not persuasive or even memorable. However, there was an obvious forensic risk that the process of the judge warning the jury against using the appellant’s response as an admission would result in the response assuming an adverse significance which it would not otherwise have in jurors’ minds.

Ground 2 re bottom slapping as sexual interest

23. Ground 2 is:

“A miscarriage of justice was occasioned by the learned trial judge’s directions to the jury that occasions when the appellant had slapped the complainant on the bottom could be used as evidence of sexual interest by the appellant in the complainant.”

24. The sole evidence in the prosecution case on the topic of bottom slapping came from the complainant’s sister. It was not mentioned by the complainant and nor was she cross-examined about it.

25. The complainant’s sister gave evidence there had been occasions when she saw the appellant smack the complainant “on the bum”, apparently randomly, and not in the context of her having done something naughty and getting a smack.

26. In the appellant’s evidence-in-chief he was asked whether he would sometimes discipline the girls and explained he sometimes did, giving them a “smack on the bum”. These questions and answers followed:

“And how often would that happen in relation to [the complainant]?--- I smacked all of them on the bottom, it was just a---

Yep?--- - - - regular thing, you know. Just like, “get” – you know, “Get on”, and, you know, “Get out of here”, or, you know, like, “Don’t do that”, you know. Like, I didn’t – yeah, I did – didn’t like flogging my kids.

Yep. Okay. And in terms – whenever you touched – you used the word bum – [the complainant’s] bum, was there any sexual---?--- No, it was never in a sexual nature, it was just, you know, like, “Get on”, “Get out of here”, or, you know, “Get out of the way”.

27. In cross-examination these questions and answers relevantly occurred:

“But you gave evidence earlier that you used to smack them to discipline them?--- Yeah, it was like a playful smack.

When you say playful, was it discipline?--- Yeah.

So you were involved in the discipline of them?--- Yeah.”

28. Later in cross-examination, after the appellant denied touching the complainant sexually, this exchange occurred:

“You’d smack her on the bottom, though, wouldn’t you?--- Yeah. Disciplinary.

You’d do that even when she hadn’t been naughty?--- Yeah. Like, when she was in the way, you know. Like, “Get out – get out of the way.” You know?

And you’d actually smack her on the bottom?--- Yeah. I’d smack them all on the bottom.”

29. It was not put to the appellant that his slapping of the complainant’s bottom was motivated by sexual interest in her. Nor had it been opened by the learned Crown Prosecutor that the prosecution would invite that inference. In addition, the admissibility of the evidence did not turn on the availability of such an inference for it was in any event relevant evidence of the degree of familiarity of the domestic relationship and thus admissible per s 132B Evidence Act 1977 (Qld). It was therefore not obvious that the evidence had been led as evidence of sexual interest.

30. However, before addresses there occurred an exchange on the topic between both counsel and the learned trial judge, in which the Crown Prosecutor indicated the evidence was being relied upon as evidencing sexual interest. This culminated in the learned trial judge later directing the jury in these terms in the broader context of sexual interest:

“So the prosecution rely upon conduct making up the particular offence and that the conduct also demonstrates that the – that the defendant had a sexual interest in the complainant which he was willing to pursue. If you so accept that beyond reasonable doubt, then you may use that finding in considering whether the – the defendant committed the other offences charged. That is, your finding of sexual interest in a particular way may make it more likely that the defendant committed other offences charged in the indictment. The evidence of each charged act must not be used in any other way. It would be completely wrong to reason that because the defendant committed one offence, he is generally a person of bad character and for that reason, must have committed the other offences.

If, based upon a conclusion that the defendant is guilty of a particular offence, you are satisfied that the – the defendant had a sexual interest in the complainant, it does not inevitably follow that you would find him guilty of another count on the indictment. You must always decide whether having regard to the evidence relevant to the particular count and the elements – the essential facts of that account – that count, that the offence charged has been established beyond reasonable doubt. There are other sexual interest matters which are more general. They are not subject to specific charges, except to the extent that they are relied upon for the maintaining charge in count 8. In that regard, in addition to the evidence of the particular conduct of the other charges in the indictment, the Crown has led evidence of other alleged incidents, in which the complainant says there was sexual conduct by the defendant towards her, but which are not charged in the indictment.

In particular, the reference was made by Mr Dunkerton to the smacking of [the complainant] on the bottom, observed by her sister … . That is, not apparently for any disciplinary purposes, and Mr Dunkerton submits to you, not as the defendant says, to merely get here to move out of the way. The Crown relies upon this other evidence of an uncharged conduct to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it. The prosecution argues that this evidence makes it more likely that the defendant committed the charged offences, as against that particular complainant. But you can only use this other evidence, if you are satisfied beyond reasonable doubt that the defendant did act as the evidence suggests, and that that conduct does demonstrate that he had a sexual interest in the complainant and was willing to pursue it.

… I should say, if you are not satisfied about that smacking on the bottom, as going to a sexual interest, then you simply put that to one side. It is not something that [the complainant] has given evidence about, but rather, her sister … . So it may impact upon your assessment of [the complainant’s evidence]. If you do not accept that this other evidence proves to your satisfaction that the defendant had a sexual interest in the complainant, then you must not use the evidence in some other way. For example, to find that the defendant is guilty of the charged offences.

If you do accept that this uncharged allegation occurred and that the conduct does demonstrate a sexual interest of the defendant and the complainant, bear in mind it does not automatically follow that the defendant is guilty of any of the offences charged. …”

31. The above quoted direction is consistent with a direction suggested by the Queensland Supreme and District Court Benchbook.³ It would be preferable, where such a direction relates to conduct which is not of an obviously sexual character, and thus may have an innocent motivation, to also reiterate the adverse inference may not be drawn if there remains open a rational innocent inference as to the conduct’s motivation. Nonetheless, a general direction regarding that approach to circumstantial evidence was given earlier here and no complaint is made that the directions were not apt to how the jury should approach consideration of whether the bottom slapping evidence constituted circumstantial evidence of sexual interest.

32. The appellant’s complaint is that the evidence was not admissible for the purpose potentially allowed by the direction. It is submitted that purpose was its use as evidence of propensity but that it was not admissible for that purpose because it did not meet the test of admissibility in Pfennig v The Queen.⁴

33. The Pfennig test of admissibility in effect requires the trial judge to apply the same test of circumstantial evidence as is ordinarily applied by the jury.⁵ Hence, as was observed by the plurality in Pfennig:

“… [T]he trial judge, … must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.”⁶

34. It would be a curious usurpation of the jury’s role if the Pfennig test of admissibility applied to all forms of circumstantial evidence which may aid in proving guilt. The Pfennig test only applies to evidence of criminal or other discreditable conduct “because it has a prejudicial capacity of a high order”.⁷ The evidence of bottom slapping was apparently not recognised as discreditable conduct carrying such prejudicial effect for there was no objection to its admissibility. If the bottom slapping was to be relied on as motivated by sexual interest, then, while not in its own right obviously evidence of discreditable conduct and propensity of the kind with which the Pfennig test of admissibility is ordinarily concerned, it was to be relied upon as supporting an inference of such discreditable conduct and propensity.

35. In the normal course when deciding whether to allow circumstantial evidence to be left to the jury as potentially probative of guilt the trial judge should not decline to allow the jury to consider evidence which is rationally capable of supporting the adverse inference sought by the prosecution on the basis that the evidence may also support a reasonable innocent inference. That is because it is for the jury, not the judge, to determine whether a reasonable hypothesis consistent with innocence has been excluded.⁸ In contrast, that is a matter for the judge to decide in applying the Pfennig test, though it of course remains a matter for the jury to reach its own conclusion about in the event the evidence is left to them as potentially probative of guilt.

36. In the present case, the evidence of bottom slapping was not described as occurring similarly to or in connection with the alleged offending and therefore gained no special significance by reason of a connection of that kind. Thus, it was not a case like BBH v The Queen,⁹ where acts of sodomy and digital vaginal penetration were alleged and the court correctly allowed the leading of evidence of the complainant’s brother that he saw the complainant bent over undressed from the waist down and the accused holding her waist with his face close to her bottom. Nor was the evidence here of conduct which was of itself unambiguously sexual. These considerations presumably explain why it was not perceived at the time of its admission as evidence having the degree of prejudicial effect which triggers the application of the Pfennig test.

37. Perhaps it is theoretically arguable that the evidence of bottom slapping supported a rational inference of sexual interest, though solely because of the part of the body touched. It is, however, an unrealistic argument because of the ambiguity of the scantly described circumstances. Such relevant surrounding circumstance as there was – the domestic setting in which it occurred – prompts an obvious rival, innocent inference. Such a setting brings with it the prospect of entirely innocuous, non-sexualised physical familiarity, possibly including the occasional tap of encouragement on a child’s backside or a light slap of the backside to playfully move the child along or out of the way. The complainant’s sister described the touching as occurring randomly, not in the context of discipline, but there was nothing in her description to better inform what motivation it was done with. Even if the area of the body touched meant an inference of sexual interest was potentially open, the evidence was incapable of excluding the other inferences, consistent with innocence, that the slapping was done in the innocuous domestic context of encouragement or playful direction. As explained above, that judgment was not ordinarily one for the trial judge to make, unless applying the test, in which case the evidence was obviously not strong enough to meet that test because it was incapable of excluding innocent inferences.

evidence of conduct which of itself is unambiguously criminal or discreditable and thus carries prejudicial effect of a high order; and

evidence of domestic conduct towards the complainant, which of itself is not clearly sexual, and would only be vulnerable to misuse if allowed to be given probative effect in circumstantial support of an inference of sexual interest or sexual relationship without satisfying the requirements for use of circumstantial evidence in such a way.

41. The distinction raises the possibility the protection required against wrongful use of the latter form of evidence is not always its exclusion from such use if incapable of meeting the Pfennig test, a test apt to the former form of evidence, and is rather, either:

its exclusion from such use if the adverse inference of sexual interest or sexual relationship sought by the prosecution is not a rational potential inference or, if such an inference arises so equivocally that it could only be drawn with the aid of proof of the offending described by the complainant; or, if not excluded on those bases,

a direction explaining the circumstantial evidence requirements to be met to the jury’s satisfaction before such an inference can be drawn.

Ultimately, it is unnecessary to resolve the argument, for two reasons.

42. The first reason arises from the weakness of the evidence and the fact the jury were directed it could not use the evidence of bottom slapping against the appellant unless satisfied beyond a reasonable doubt that it demonstrated the appellant had a sexual interest in the complainant and was willing to pursue it. Herein lies a difficulty for the appellant. The appellant is likely correct that the bottom slapping evidence would have been too weak to meet the Pfennig test of admissibility. It was not only very weak in its narrow support for an adverse inference, it was also incapable of excluding innocent inferences. But that same weakness means the jury could not have been satisfied beyond a reasonable doubt that the evidence did demonstrate sexual interest, as it was directed it had to be. Such a conclusion may be reached with confidence because the evidence did not of itself carry such inherently prejudicial effect as to risk overwhelming the effectiveness of such a direction.

43. As earlier discussed, the bottom slapping evidence was not obviously prejudicial, in the way that evidence of other offending or unambiguously sexual misbehaviour is. It could only have been perceived as discreditable, and thus prejudicial, if it was concluded it was motivated by sexual interest and there was no realistic prospect of such a conclusion. It was not evidence that was so inherently prejudicial that there was a real risk of the jury not correctly applying the judge’s directions.

44. The second reason derives from the first. The evidence was so obviously weak that defence counsel leapt at the forensic advantage it would bring to the defence of the case by fostering the prosecution’s futile reliance upon it. As much is apparent from the following exchange between counsel and the learned trial judge on this topic:

“MR DUNKERTON: ---I did propose to address the jury on evidence of sexual interests, the only bit being observations by [the complainant’s sister] of the defendant smacking [the complainant] on the bottom in circumstances where it was not for discipline. That’s the only evidence of sexual interest I propose to rely upon. I’ve raised that with my learned friend, but I thought I should just raise that with your Honour before I address on the point in case your Honour has a different view about whether that amounts to it. In my submission, it does.

HIS HONOUR: Well, it’s pretty tenuous.

MR DUNKERTON: I didn’t propose to rely upon the kissing, which is otherwise described. I think that is too tenuous. I accept the smacking is at the very low end of the spectrum of evidence of sexual interest that would normally be captured by it, but, subject to your Honour’s view, I proposed to just address on it briefly.

HIS HONOUR: Mr Sheridan.

MR SHERIDAN: Yes, the Crown Prosecutor, my learned friend, did open that evidence in his opening address about [the complainant’s sister’s evidence] sexual interest. In my submission, tactically, I was going to use that in my favour in the closing address. So if your Honour wanted to give a sexual interest direction as contended for by my learned friend, I don’t have a difficulty with it. I’ll be using it in a way that will become clear in my closing address. Thank you.

HIS HONOUR: Yes, well, it was a matter raised with the other child as an unusual feature of their dynamic. At this stage I’m inclined to permit it because the direction to the jury includes that they have to consider whether or not it reaches the bar.

MR DUNKERTON: Yes.

HIS HONOUR: Whether or not it’s a matter for you to tactically consider, do you really need it, that’s a matter for you. I don’t need to trouble you about my thoughts. They’re your own matters of discretion. What I’ll do is I’ll send to you my draft summing up. There will, of course, be amendments and I talk to it rather than read from it. But that’ll give you an idea of the topics I’m going to cover, in any event. And at this stage, I’ve included that last submission in there because I had wondered what I had missed, I must confess. Okay.” (emphasis added)

45. The obvious hint from the learned trial judge in the above exchange was that the bottom-slapping evidence was weak in support of an inference of sexual interest. Defence counsel clearly thought the same thing and was quite content to encourage the prosecution into clutching at such a weak argument in support of its case to give foundation to defence counsel’s arguments about the weaknesses of the prosecution case.

46. Warming to that forensic opening, defence counsel had, in the above-quoted exchange, represented the Prosecutor had opened the evidence of sexual interest. In fact that had not occurred. The evidence had simply been opened in a neutral way. Then in defence counsel’s ensuing address he highlighted the complete absence of objective supporting evidence, before then mentioning the evidence of touching on the backside. He went on to submit:

“The Crown prosecutor opened that of sexual interest.

Sexual interest. Imagine if you were a grandparent or you did that to your child and you touched them on the backside and some other child at the time said that seemed a little bit weird or strange. Mr Dunkerton will stand up three or four years later and say that’s just simply evidence of sexual misconduct. You can use that evidence against [the defendant] as per his opening to say you can more safely act upon the evidence to say that this is just a witnessed event. How plausible is it? Well, again, [the defendant] gave evidence and said very quickly that he not only did that once, but he did that on many occasions to both [the complainant] and also [the complainant’s sister]. Once again, not only did he accept it. He came into it and expanded it quite significantly.”

47. It is quite clear defence counsel consented to the course taken in the giving of the direction now complained of because he wanted the jury to see the Crown case as over-reaching in its futile reliance upon the bottom slapping as sexual interest. Such consent is usually an important indication that an appellant suffered no miscarriage of justice by pursuit of the intended course.¹²

48. The two reasons just discussed in combination demonstrate the direction did not occasion a miscarriage of justice. Ground 2 fails.

Ground 3 re distressed condition

49. Ground 3 is:

“A miscarriage of justice was occasioned by the learned trial judge’s directions to the jury that evidence of the complainant’s distressed condition at the time she made a preliminary complaint about the offending to her mother could be left to the jury as independent evidence supporting the complainant’s account.”

50. It will be recalled that on the morning of 29 October 2019 the complainant’s mother told the complainant of how she had seen the appellant in the complainant’s bedroom, looking under the doona, the night before and that that prompted the complainant’s disclosure of what had been going on. By way of greater detail, the mother testified that after she told the complainant of what she had seen the night before, the complainant looked shocked. She asked the complainant if the appellant was going into her bedroom, to which the complainant responded, “Yes, Mum. He’s been raping me”. The complainant’s mother then broke down and spoke with her godmother before speaking again with the complainant about what the appellant had been doing to her. The complainant went on to describe how he had been coming in and putting his mouth on her privates and had also been touching her there with his finger and his private, as well as grabbing her breasts. The complainant’s mother testified that when the complainant was telling her these things “she was upset, shocked, crying”.

51. The solitary proposition that when the complainant was telling her mother these things “she was upset, shocked, crying” was the only evidence about the complainant’s distress when making the disclosure to her mother of what had been occurring. In sequence, it followed her mother having broken down a little earlier in this conversation. The conversation was occurring about a month after the most recent alleged sex offending against the complainant.

52. Neither counsel had addressed as if that evidence of the complainant carried any particular significance, whether under the badge of “distressed condition” or otherwise. The learned trial judge had, however, provided counsel with draft notes for his summing-up and they included reference to the prospective use of that evidence as distressed condition. That did not provoke a request from either counsel that such a direction should not be given. During his Honour’s ensuing summing-up, in touching by way of summary on some of the evidence given, he reminded the jury of the mother’s evidence that when the complainant had disclosed what the appellant had been doing to her, “she was upset, shocked, and crying”. His Honour continued:

“[S]he described that when [the complainant] said these things to her, she was upset, shocked, and crying. Now, I am going to talk to you a little bit about that soon. That is, her distress and how you treat that.”

53. His Honour then returned to that topic, as foreshadowed, later saying:

“I spoke to you about the distressed condition that her mother spoke about … She described that when [the complainant] was telling her these things – how she looked. She looked upset, shocked, and crying. This has been relied upon by the prosecution in support of the evidence that the complainant was offended against by the defendant by that time. It is a matter for you as the sole judges of the facts whether you accept the evidence relating to her condition when she displayed it to her mother. If you do, then you have to ask yourselves, was the condition genuine or was she pretending? Was she putting on the condition of distress or was there any other explanation for the distressed condition at that time?

It is customary for judges for warn juries that you ought to attach little weight to distressed condition, because it can be easily pretended. If you find that the distress was genuine, then it may be used by you as evidence that supports the complainant’s … account.”

54. His Honour’s above-quoted understanding that the complainant’s appearance of distress had been relied upon by the prosecution in support of the evidence that the complainant was offended against by the appellant by that time was not actually correct, although that understanding was apparent from the draft summing-up circulated to counsel in advance and neither sought to correct the slip. In any event, argument in respect of this ground does not turn on that slip. Rather, it turns on whether the direction as to how the jury could use the evidence was incorrect because, as the appellant’s counsel put it, the evidence could not provide independent support of or corroboration for the occurrence of any of the offences complained of.

55. Argument in respect of this ground was infected by knowledge of the law as it once was in connection so called “distressed condition”. That badge once described a category of evidence that could serve as evidence of corroboration. Corroboration is testimony, independent of the complainant, tending to confirm in some material particular that the crime has been committed by the accused.¹³ It was once a rule of practice in respect of sex offences that the trial judge should warn the jury it was dangerous or unsafe to convict on the uncorroborated testimony of a complainant.¹⁴ That dubiously founded practice had started to be moderated by the use of less absolute terms than dangerous or unsafe,¹⁵ by the time the use of it was legislatively abolished in Queensland over a quarter of a century ago in 1997.¹⁶

56. Prior to then, whether evidence of the complainant’s distressed condition was capable of constituting corroboration was dependent on whether evidence, such as the complainant’s age, the time interval between the alleged offence and the distress, the complainant’s conduct and appearance in the interim and the circumstances existing when the complainant was observed in the distressed condition, gave rise to a reasonable inference of causal connexion between the alleged offence and the distressed condition.¹⁷ Juries were also often warned against giving significant weight to distress as corroboration because it could be feigned or may be genuine but related to other causes.¹⁸

57. In the present case, the appellant had been seen in the complaint’s bedroom only the night before the exhibiting of distress but the complainant’s account did not ever complain of offending on that occasion and the timing of her distress was connected with that event only as the trigger for her mother’s conversation with her the following morning.

Ground 4 re non-compliance with the rule in Browne v Dunn

67. Ground 4 is:

“A miscarriage of justice was occasioned by the failure by the prosecution to comply with the rule in Browne v Dunn in not giving the appellant the opportunity to respond in cross-examination to two factual contentions which the Crown Prosecutor urged the jury to accept.”

68. This ground is based on two alleged non-compliances by the Crown Prosecutor with the rule in Browne v Dunn.²⁶ The first is that the Crown Prosecutor did not put to the appellant, as he was to later contend to the jury, that the appellant’s response on the night of 28 October 2019 in saying “What, do you think I’m touching the girls?” was an admission. The second is that the Crown Prosecutor did not put to the appellant that his slaps on the bottom of the complainant were motivated by sexual interest in her.

69. Reasons why the course of events at trial in respect of both those topics as they ultimately went to the jury did not occasion a miscarriage of justice have already been given. Those topics do not weigh more concerningly by reason of their accumulation in the present ground.

70. There is a difficulty with this ground, additional to those already apparent from the reasons given in respect of grounds 1 and 2. The complaint that a miscarriage of justice was occasioned is inconsistent with the fact that after the Crown Prosecutor had advanced the two features at issue in the course of his closing address, no issue was taken about it by defence counsel.

71. Where there is concern that the rule in Browne v Dunn, which is a rule of fairness, may actually result in unfairness to a party, it is open to the party to complain forthwith of the non-compliance in order that any alleged unfairness arising from the matters not having been put can be addressed. There may, of course, be cases where it is not practical to remedy the alleged unfairness, potentially giving rise to a need to discharge the jury and commence the trial afresh. But this was not such a case. Defence counsel would have been entitled to request, in light of the matters not having been put, that the appellant be recalled for them to be put. Additionally, or alternatively, it was open to defence counsel to invite the Crown Prosecutor to retract the submissions which had been made, because they had not been put. Additionally, or alternatively, it was open to defence counsel to seek a direction from the learned trial judge to identify the nature of the unfairness to dissipate any concern as to its effect.

72. The inaction on any of these fronts regarding either matter is readily explicable as an exercise of forensic judgment. As to the first alleged non-compliance, it would have been tactically wise not to further highlight the learned Crown Prosecutor’s inherently unpersuasive one-sentence comment about an admission. As to the second alleged non-compliance with the rule in Browne v Dunn, it has already been explained that defence counsel wanted to emphasise the Prosecutor’s reliance upon the bottom slap as evidence of sexual interest for forensic advantage. Those forensic considerations outweighed the mild disadvantage of the appellant not having been given opportunity to specifically comment on the two evidentiary interpretations advanced in the prosecutor’s closing address. It was at worst a mild disadvantage because as it turned out the appellant had exercised the opportunity when testifying to offer his explanation of what motivated his conduct in respect of both evidentiary topics.

Conclusion and Orders

75. None of the appellant’s grounds having succeeded, I would order:

Appeal dismissed.

Footnotes

1. All were domestic violence offences. ↩

2. (2020) 271 CLR 537, 543. ↩

3. Chapter 70. ↩

4. (1995) 182 CLR 461. ↩

5. (1995) 182 CLR 461, 483. ↩

6. (1995) 182 CLR 461, 485. ↩

7. (1995) 182 CLR 461, 483. ↩

8. See R v Stewart; Ex parte Attorney-General [1989] 1 Qd R 590, 592 (endorsing the extra-curial proposition to like effect of Glass J in “Acquittals by Direction” (1986) 2 Australian Bar Review 11, 12); Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 415 (approved in Doney v The Queen (1990) 171 CLR 207). ↩

9. (2012) 245 CLR 499. ↩

10. (2008) 235 CLR 334, 400 [175]. ↩

11. (2008) 235 CLR 334, eg: 384 [111], 400 [175], 502 [512]. ↩

12. Gately v The Queen (2007) 232 CLR 208, 233, per Hayne J. ↩

13. R v Baskerville [1916] 2 KB 658; [1962] Qd R 456; also see the definition of corroboration in s 1 (Qld).