Court of Appeal (Qld)|2009-02-13|Before: McMurdo P, Keane JA and Atkinson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Keane JA and Atkinson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – EVIDENCE – GENERAL ISSUES – appellant
applied to adduce further evidence – sought to admit
various affidavits
regarding his character, the character of the complainant and circumstances of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – EVIDENCE – GENERAL ISSUES – appellantapplied to adduce further evidence – sought to admitvarious affidavitsregarding his character, the character of the complainant and circumstances ofthe offence – whether thisevidence was available at trial – whetherleave to adduce further evidence should be allowedCRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEALDISMISSED –appellant claimed verdict was unreasonable, constituted a miscarriage ofjustice, and was not supported by theevidence – appellant claimedcomplainant made false allegations against appellant – appellant claimedcase against himwas weak – whether appeal against conviction should beallowedCRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OREXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – appellantclaimed judge
erred in admitting certain evidence – whether judge failed to ensure
fairness of trial by admitting prejudicial
evidence – whether evidence of
complainant's admissions to another female teenager were unreliable –
whether this evidence
should have been admitted
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND
CIRCUMSTANCES OF OFFENCE – CIRCUMSTANCES OF OFFENCE
– appellant
claimed sentence of five years imprisonment was too high – whether
sentence was manifestly excessive
Crimes Act 1914 (Cth), s 23K(1)(B)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence
Act 1977 (Qld), s 21A
R v MBC [2008] QCA
263, distinguished
Judgment (42 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McMURDO P: The appellant pleaded not guilty in the District Court at Mackay on 13 February 2008 to one count of maintaining a sexual relationship with a child. The complainant's evidence was pre-recorded that day under s 21AEvidence Act 1977 (Qld). On 17 March 2008, the appellant again pleaded not guilty, this time before a jury. The trial proceeded over the following three days. On 19 March 2008, the jury convicted him. The judge sentenced him to five years imprisonment. He filed his notice of appeal against conviction and sentence about one month late, but he was granted an extension of time by this Court, differently constituted, on 26 August 2008. Since then, a full appeal record book has been prepared. He has also applied for leave to adduce further evidence in this appeal. Although represented at trial, he is self-represented in this appeal.
[3]
[2] The appellant's contentions in his written outlines of argument are as follows. The first is that the complainant, his teenage step-daughter, made false allegations against him because of the parental control he exercised over her in her best interests. The case against him was weak. The guilty verdict was unreasonable, constituted a miscarriage of justice, and was not supported by the evidence.
[4]
[3] His second is that the judge "erred in law by allowing evidence which according to section 23K(1)(B) of the Crimes Act 1914 (Cth) should have been ruled inadmissible".
[5]
[4] The third is that the judge failed to ensure fairness by admitting improperly obtained evidence. The prejudicial value of this evidence outweighed its probative value. His argument seems to be that the complainant's evidence that she made a complaint to another female teenager, KC, was unreliable because she was not a close friend and it should not have been admitted.
[6]
[5] The fourth is that the judge "erred, in allowing the prosecution to proceed with an additional charge on the day of trial, without the prosecutor disclosing its case in full to [him] as [he had] never been formally charged". This contention centres on his claim that he had not been informed prior to his trial of some of the complainant's allegations against him, in particular her claim that he sexually assaulted her on 6 August 2007. Had he known of these allegations, he could have called witnesses to disprove them.
[7]
[6] The fifth is that the judge "erred in allowing the prosecution to disclose evidence to the jury which had been omitted from evidence prior to the trial". This contention seems to centre on the complainant's evidence that she told a neighbour, CH, that the applicant had sexually abused her when the prosecution did not call CH to give evidence at trial.
[8]
[7] In his oral submissions, the applicant repeated many of these contentions. For the first time, he also complained about his lawyers' conduct of the trial. He claimed that his barrister persuaded him not to give evidence and that had he fully understood the allegations against him he would have called witnesses at his trial.
[9]
[8] In respect of his application for leave to appeal against sentence, he stated that he thought the five year term of imprisonment imposed on him was "pretty high".
[10]
[9] He has also applied to call evidence from a number of witnesses whom he claimed, in his written submissions, would establish matters such as his "employment ethics, dedication in loving and providing for family. Also establishing [his] conduct in a position of trust, caring for children". He claimed that another proposed witness would contradict "the close Friendship between the complainant and Crown witness, who though, did not witness the alledged offence, was alledgedly told by the complainant about the alledged offence" (errors as in original). His wife, he claimed, would establish that "the complainant was a Mental Health patient prior to making of the accusations".
[11]
[10] At the appeal hearing, the Court enquired whether he had any actual evidence to place before it. He said he had some affidavits. As the appellant was appearing by video link from the Capricornia Correctional Centre, we arranged for a correctional services officer to fax this material to the Court. It was to the following effect.
[12]
[11] The appellant's wife deposed that at the time of the charged offence the family lived in a caravan. She and the appellant lived upstairs in the caravan. Downstairs was a "hard annex" sectioned off into separate bedrooms for the children, including the complainant. The TV and DVD player were in the kitchen area downstairs. She asserted her belief in the innocence of the appellant. She said that the complainant telephoned her:
[13]
"telling me she lied to everyone and that [the appellant] never touched her, she just wanted to go out more. She has constantly been giving me false hope by stating that she will go to the police and tells them the truth and causing me no end of stress and heartbreak." (errors as in the original)
[14]
[12] In another statement, the appellant's wife claimed that KC had never visited their residence, was not a friend of the complainant and that the complainant had never mentioned KC before making her complaint to the police.
[15]
[13] The appellant's daughter, S, deposed that the complainant was sometimes violent, dishonest, drunk and on one occasion verbally abused her mother and others in the family.
[16]
[14] The appellant also provided the Court with an unsigned typewritten statement from his son, D, who was two years younger than the complainant, to the effect that the TV and DVD player were never upstairs in the caravan.
[17]
[15] Before returning to the appellant's contentions and application to adduce evidence, it is necessary to briefly set out the main evidence at trial.
[18]
[16] The appellant and his family moved to a town in central Queensland in September 2005 when the complainant was about 12 years old. She attended the local high school. The family lived in a caravan and annex in a caravan park. On 5 March 2007, when the complainant was 14 years old, she told police that the appellant had sexually interfered with her. The police interviewed her the next day and again on 6 August and 13 December 2007. All these interviews were recorded and tendered at trial under s 93A Evidence Act. Her further evidence, cross-examination and re-examination were pre-recorded on 13 February 2008.
[19]
[17] The complainant's evidence was as follows. On occasions after the family moved to the caravan park, when her mother was at work, the appellant involved her in inappropriate sexual conduct. She said that he "makes me do stuff to him" and "says he wants to have sex with me". The first occasion was when he sent her brothers to the shops, leaving her alone in the caravan with him. She was lying with him on his bed watching a DVD. He exposed his penis and had her touch it. Regular sexual conduct followed. She said, "ever since then its just been like doing everything else except for having sex." On occasions, when he was completing, or having her complete for him, his work diary, he made her perform oral sex on him. On one occasion a few weeks before the first police interview, he digitally penetrated her, licked her genitals, made her take his penis in his mouth and ejaculated. The last incidence of sexual contact occurred about a week before she spoke to police when she stayed home from school to complete an assignment. He grabbed her and "fingered" her. He put his whole finger in her private part. He grabbed her on the breast. He made her stroke him on the penis. He made her give him "oral" sex, a "handjob" and he "like licked out [her] private part". Conduct like this occurred "probably like twice a week" since the family moved to the caravan.
[20]
[18] She told a friend, KC, and a neighbour, CH, about the appellant's conduct. KC was in her classes at school and had been sexually abused by an uncle. In February 2007, CH asked the complainant about scars on her leg. These were caused by self-harming. The complainant told CH that she self-harmed because of the appellant's abuse. She said that CH "doesn't understand because its never happened to her".
[21]
[19] Police interviewed the complainant again on 6 August 2007 after they had taken possession of the appellant's work diary. The complainant identified her handwriting in the diary. She said that after one "massive fight" with her mum and the appellant, she took 37 Panadol and was admitted to hospital. This episode was also triggered by the fact that she was often in trouble at school, and that the appellant attempted to prevent her from attending parties with friends. She remembered another incident when she was with the appellant in his water truck. They went into the sleeper cab and he did "the usual stuff". She explained that this involved her giving the appellant oral sex to ejaculation and him digitally penetrating her. Sometimes her brothers were with them in the water truck but nothing happened on those occasions.
[22]
[20] The pre-recording of the complainant's evidence was originally listed for hearing in December 2007. During preparatory interviews however, she made further disclosures of sexual abuse by the appellant. Police interviewed her again on 13 December 2007. She described two additional incidents involving the appellant in these terms. He attempted to have sexual intercourse with her in the bed upstairs in the caravan. He tried to push his penis into her vagina. It hurt. On another occasion, when they were out in the car to hire "a bunch of movies" including one called "Thirteen", he "fingered" her and had her give him "head". (The prosecution case was that tendered video store records showed that this incident happened on 21 July 2006.)
[23]
[21] In cross-examination, the complainant agreed that at one time she wanted to discontinue the charges. This was because she wished to re-unite with her mother. She denied ever saying the allegations were untrue. She said she wanted to live with her mum and her family. She did not regard the appellant as part of her family. She contacted her mother through the appellant's phone as the mother shared this phone with him and it was on the same network as the complainant's phone. She agreed that she told one police officer that the appellant had been abusing her for the four months preceding February 2007. She admitted that she called her mother offensive names when she was angry with her, but her mother also called her names. She did not think she spat at her mother. She said that she did not tell the police all the incidents that occurred with the appellant during the first interview because she was confused and could not remember everything that had happened over the past year. She maintained that all her allegations against the appellant were true. The appellant's barrister put to her, individually, that none of the episodes of alleged sexual impropriety with the appellant had occurred. The complainant maintained the truth of her allegations. The appellant's barrister suggested that, although the television was sometimes in the upstairs area, there was no DVD player upstairs. The complainant responded that the DVD was sometimes upstairs. She maintained she and the appellant were watching a DVD when he first abused her on his bed. She was asked why she did not complain to her mother. She responded, "Of course I wouldn't tell my mum, she wouldn't believe me anyway, look where she is now".
[24]
[22] In re-examination, she said that at the time she sought to withdraw her complaint against the appellant she wished to be re-united with her mum who had been involved in a serious car accident. She was concerned about her mother and she was missing her. She maintained that she had not made up false allegations against the appellant.
[25]
[23] KC gave evidence that the complainant told her over the internet and on MSN that the appellant was "doing stuff" to her. The complainant also told her in oral conversation that these things happened. She did not describe to KC in detail what happened because she was really upset. Sometimes she cried when she telephoned KC.
[26]
[24] The complainant's mother gave evidence that she sometimes worked shifts when the complainant was at home with the appellant. In cross-examination, she said that, from December 2006 onwards, as a general rule she was home at night. She had problems with the complainant's behaviour. The appellant imposed strict rules on her. This led to arguments. The complainant would sneak out of the home. On occasions during arguments, the complainant would call her "slut" and "whore" and hit out at her. On one occasion, the complainant spat at her. In May 2006 the complainant attempted suicide. She said she did this because of the workload at school and the strict household rules. She made no complaint of any sexual abuse. The complainant often sent text messages to her mother's mobile phone. It was irregular for her to receive a text message from the complainant via the appellant's phone. In September 2007, the complainant told her, both on the telephone and in person, that she wished to drop the charges against the appellant because they were untrue. She said that she made them up to get out of her home town. The complainant said she would approach the police about having the charges dropped.
[27]
[25] The appellant did not give or call evidence.
[28]
[26] Section 23K Crimes Act 1914 (Cth) relates to police obligations when interviewing suspects under 18 years of age in relation to Commonwealth offences. It has no application to interviews with juvenile complainants in respect of offences against Queensland laws. The contention that the complainant's evidence did not comply with s 23K is completely misconceived.
[29]
[27] The appellant's concerns about the admissibility of the complainant's evidence of her complaint to KC and KC's evidence about this are also misconceived. It is not surprising that the complainant's family were unaware of her friendship with KC. Nor is it surprising that the complainant chose to make a complaint to KC, who also claimed to have been a victim of sexual abuse. The evidence was admissible under s 4ACriminal Law (Sexual Offences) Act 1978 (Qld). The judge gave careful and correct directions to the jury as to its limited use. The evidence was capable of positively assisting the defence as raising the possibility that the complainant had made false allegations by mimicking KC's complaints about her uncle.
[30]
[28] The appellant's submissions about the complainant's evidence that she had complained to a neighbour, CH, when CH was not called as a witness, are also without substance. Like the evidence of the complaint to KC, this aspect of the complainant's evidence was technically admissible under s 4A. The judge gave the jury appropriate and careful directions about it:
[31]
"... you will have noted that the next-door neighbour has not been called to give evidence. There is then nothing for you to compare the complainant's evidence with to see whether there is consistency or inconsistency with her evidence. Importantly there is no evidence from the neighbour that she was in fact told anything. Whether or not the complainant spoke to the next-door neighbour depends solely upon your determination of the complainant's credibility anyway. Importantly I remind you that you cannot regard that piece of evidence as proof that abuse did in fact occur. It is nothing more than the complainant saying that she did tell someone that it occurred. That does not independently prove anything. In the circumstances I instruct you that that piece of evidence cannot assist you in assessing the complainant's credibility. It cannot bolster the complainant's credibility. I instruct you that it has no value in this trial and you should ignore it."
[32]
The jury must have understood that they could give no weight to this aspect of the complainant's evidence.
[33]
[29] The appellant's claim at the appeal hearing, made without any supporting evidence, that he was unaware at trial of the allegations made by the complainant, particularly those arising out of her interview with police on 6 August 2007, is not made out. It is implausible. Contrary to his contention, no additional charge was brought against him at the commencement of this trial. The conduct of the defence case at trial made clear that the appellant's barrister was familiar with all of the complainant's allegations. The only rational inference on the material before this Court is that the barrister had taken instructions from the appellant on them and was acting on those instructions in her cross-examination of the complainant and other witnesses.
[34]
[30] The complainant's evidence as to the appellant's sexual abuse of her was uncontradicted by other evidence. Her account that the appellant maintained a sexual relationship with her remained unshaken despite its rigorous testing in cross-examination. Any weaknesses and inconsistencies which emerged were not such as to require the jury to reject her evidence. The appellant's barrister addressed the jury on these matters and urged them not to accept the complainant's evidence beyond reasonable doubt. The judge even-handedly alerted the jury to the competing contentions of the prosecution and defence and made clear that they could only convict the appellant if they were satisfied of the truthfulness of the complainant's evidence as to the elements of the offence beyond reasonable doubt. After reviewing the evidence, it is clear that the jury were entitled to accept the complainant's evidence and her explanation as to why she added to her initial complaint on a number of occasions and why she once wanted to drop her complaint. They were entitled to be satisfied beyond reasonable doubt of his guilt, even though she was a rebellious and emotionally volatile teenager; this conduct was equally capable of being consistent with the truth of her allegations as with their fabrication. The appellant has not demonstrated that the guilty verdict was "unreasonable, or can not be supported having regard to the evidence".[1] This contention is also without substance.
[35]
[31] The further evidence which the appellant now seeks to place before this Court was available at the trial. The evidence from his wife was largely adduced by his barrister in cross-examination at his trial in any case. The statement he seeks to adduce from his son is not evidence: it is not signed or contained in an affidavit. In any case, neither it, nor the evidence from the appellant's daughter and his wife, could possibly have caused a reasonable jury to have acquitted the appellant on this charge. The application for leave to adduce further evidence should be refused.
[36]
[32] It follows that the appeal against conviction should also be dismissed.
[37]
[33] The maximum penalty for this offence is life imprisonment. The appellant has no previous convictions and appears to have been of good character but for this serious offending. On the other hand, he was a mature man who grossly abused his position as step-father over a 12 - 18 month period. The complainant was aged between 12 and 14 years at the time. The abuse included regular oral sex to ejaculation, digital penetration and attempted intercourse. He showed no remorse and did not have the mitigating benefit of an early plea of guilty or co-operation with the authorities. The victim impact statement demonstrates that the complainant has been seriously detrimentally affected by his actions. She has been alienated from her mother and from some of her siblings. In these circumstances, a sentence of five years imprisonment is not manifestly excessive: cf R v MBC.[2] The application for leave to appeal against sentence should be refused.
[38]
3. The application for leave to appeal against sentence is refused.
[39]
[34] KEANE JA: I agree with the reasons of the learned President and with the orders proposed by her Honour.
[40]
[35] ATKINSON J: I agree with the orders proposed by the President and with her Honour's reasons.