R v Robinson [2007] QCA 99

Judgment (64 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] WILLIAMS JA: I agree with all that is said by Keane JA in his reasons, and with the orders he has proposed.

[3]

[2] KEANE JA: On 9 October 2006, the appellant was convicted after a trial by jury in the District Court at Cairns of one count of maintaining a sexual relationship with a child under 16 years of age and two counts of rape. The appellant was sentenced to life imprisonment in respect of each offence.

[4]

[3] The appellant seeks to appeal against the convictions on the ground that they were "unsafe having regard to the evidence". The appellant also seeks leave to appeal against the sentences imposed on the ground that they are "manifestly excessive in all of the circumstances".

[5]

[4] The complainant was a female child born on 1 March 1998. The appellant, who was 55 years old at the date of trial, was a friend of the complainant's parents.

[6]

[5] The Crown case was that the appellant spent time with the complainant, both while they were with her family and when they were alone together. They played games together and he gave her presents. He took her for drives in his car; and she slept over at his house. The Crown alleged that, from approximately 1 May 2003, when the complainant was five years old, until 26 March 2005, when the complainant was seven years old, the appellant maintained a sexual relationship with the complainant. The Crown also alleged that, on 2 March 2005 and 24 March 2005, the appellant raped the complainant in his motor vehicle.

[7]

[6] The complainant gave pre-recorded video evidence. The complainant was obviously reluctant to talk about her experiences. She said that she and the appellant had been on a double bed in his house. She was not wearing any clothes and he was touching her. She was on her back and his bottom half was moving. She said: "I don't know if I can feel anything." She also said that she had been with him in the back seat of his car in a place near a creek where she could see sugar cane. She said that the bottom part of him - which she identified by spelling "D"-"I"-"K" - was moving. She said that it was hard, and touched her bottom half - which she said starts with a "V" and ends with an "A" - above the knees but below the belly button. She saw white stuff which was wet. She said that it touched the inside of her body. She said that this happened both at the house "a lot of times" and, in the appellant's car, on "a little number of times". She said that she did not want him to do it, but could not remember the words she used. She did not tell anyone because she was too scared.

[8]

[7] The complainant said that the appellant stopped taking her for drives after his marriage to a Chinese lady, Q. Other evidence established that the appellant married Q in February 2005.

[9]

[8] The Crown case was that the rapes the subject of the specific counts against the appellant occurred after the appellant's marriage to Q. In this regard, the appellant's motor vehicle had been fitted with a listening device on 23 February 2005, by police engaged in other investigations. This device recorded conversations between the appellant and a female person in his car on the dates of the alleged rapes. The terms of these conversations were consistent with the occurrence of sexual intercourse which was a painful and unwelcome experience for the female participant.

[10]

[9] The complainant's father gave evidence that the female voice on the tapes was that of the complainant. The complainant's mother also gave evidence to the same effect. The appellant's case was that the female voice on the tapes was that of his wife Q. Both the complainant's father and mother gave evidence that they were familiar with Q's voice. Each of these witnesses said that Q's voice did not sound anything like the complainant. A short taped example of Q's voice was tendered at trial by the Crown.

[11]

[10] It may be noted here that the evidence of the complainant's father and mother was given without objection. It was not suggested, for example, that either witness was not sufficiently familiar with the voices of the complainant and Q that he or she was not in a position of real advantage over the jury in identifying the voice on the audio tapes.

[12]

[11] The complainant's underclothing worn on the occasion of 24 March 2005 was later found to contain semen. The DNA from that semen was consistent with that of the appellant, although there was not sufficient DNA to establish a conclusive match with the appellant's DNA because the sample did not contain any spermatozoa. The appellant had previously undergone a vasectomy, and there was medical evidence to the effect that a vasectomy is one cause of the absence of spermatozoa in semen.

[13]

[12] The complainant also gave evidence that she had had sexual intercourse with her cousin B. The complainant's parents gave evidence that B was about 16 years old at the date of the trial. The complainant said that she had had sex with B many times but that the appellant had done it more times than B. She accepted that she told the police that she had had sex with the appellant but not with B because she liked B. It was suggested to her that it was B who had had sex with her, and that she had substituted the appellant's name because she was angry at him for bringing Q into their lives. The complainant did not actively dispute this suggestion, but it was far from clear that she accepted it.

[14]

[13] Dr Messer gave evidence of having examined the complainant. He found that the extent of the dilation of the child's vagina was consistent with penetration by an adult's penis over a long period of time, and certainly more than 10 times.

[15]

[14] The Crown also called evidence from CE that she had observed the appellant tongue kissing the complainant on a social occasion when the appellant may have believed that he could not be seen.

[16]

[15] CE's mother, SE, gave evidence of a conversation with the appellant in which he made a lame joke by way of an attempted explanation of the tape recordings of the incidents in his car, which may have been taken to be an admission that it was the complainant, and not Q, with him in his car on those occasions.

[17]

[16] The appellant gave evidence denying having dealt sexually with the complainant in any way. He denied that he had even tongue-kissed the complainant. He said that the conversations recorded by police on 2 March and 24 March 2005 were between him and Q. It may be noted here that, in the audio tape for 24 March 2005, the appellant was recorded as saying: "Oh for fuck's sake do you want to be here all night? [Q] will be ringing Peter in five minutes and we're not even there."

[18]

[17] The appellant's wife Q did not give evidence, but, as has been noted, a tape-recording of her voice was admitted in evidence as Exhibit 39.

[19]

[18] The appellant contends that the verdicts of the jury were "unsafe having regard to the evidence". This ground must be understood to be to the effect that, on all the evidence, no reasonable jury could have been satisfied of the appellant's guilt beyond reasonable doubt.

[20]

[19] This ground of appeal was not supported by argument and must be rejected. To the extent that the complainant's evidence was vague or even inconsistent with the Crown case, the learned trial judge directed the jury that they "must proceed with particular caution with the evidence of the complainant". More importantly, the complainant's evidence was only one aspect of the Crown case, supported as it was by the audio tapes and the aural identification of the appellant by the complainant's father and his partner, the DNA evidence, and the evidence of Dr Messer.

[21]

[20] A submission originally made on behalf of the appellant in support of the appeal was that the evidence of the complainant's father and mother identifying the complainant's voice on the audio tapes of 2 March and 24 March 2005 was inadmissible. This submission was not pursued by the appellant's counsel at the hearing of the appeal. In my respectful opinion, the decision by the appellant's counsel not to press this submission was soundly based. The first difficulty with this submission is that, as has been noted, the evidence was adduced without objection at trial: no attempt was made to suggest that these witnesses were not sufficiently familiar with the voices of the complainant and Q to be able to express a valuable opinion as to who it was with the appellant on the audio tapes. The evidence was admissible as evidence of persons who were familiar with the voices of the complainant and Q. As a result of that familiarity, they had a distinct advantage over the jury in this regard. It is well-established that such evidence is admissible.[1] This case is not in that category of cases in which evidence of visual or aural identification by a witness is given by a witness in no better position than the jury to make the necessary comparison.

[22]

[21] An argument on behalf of the appellant was passed in relation to the insufficiency of the warning given by the learned trial judge in relation to voice identification. Associated with this argument was the further argument that the learned trial judge erred in ruling, over the objection of the appellant's counsel, that the jury should be provided with a transcript of the audio tapes of 2 March and 24 March 2005. His Honour ruled that "[t]he tape is not clear in all respects and I think the jury would be assisted by [the transcript]". The appellant complains, both in relation to the general terms of the warning, and the fact that it was given by reference to the transcripts of the audio tapes and not the tapes themselves. The appellant says that the jury should have been warned as to the poor quality of the tapes, the limited time of actual voice recording and the consequent difficulties of comparison, the risk that positive witnesses might be mistaken, and the possibility that voices may sound different on tapes.

[23]

[22] As to the terms of the warning required by law in respect of voice identification, in Bulejcik v The Queen, Toohey and Gaudron JJ said: [2]

[24]

"This Court would be slow to depart from a trial judge's assessment that material was of sufficient quality and quantity for the jury to be permitted to make the necessary comparison. The question rather is whether the jury were given sufficient warning of the difficulties involved. While they were properly alerted to differences in the acoustics, they were not told to consider: (a) the different contexts in which the taping took place, namely, at the appellant's home, in the car and in the car park on the one hand and in the courtroom on the other; and (b) the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury were not familiar. The reference to English not being the appellant's mother tongue was insufficient. Indeed the risk, where an accused's first language is not English, is that a jury might conclude too readily that a foreign accent on a tape is that of the accused where the accents are similar. Furthermore, counsel should have been given an opportunity to address the jury in regard to the comparison, though it must be acknowledged that neither counsel asked for the opportunity.

Domican v The Queen ((1992) 173 CLR 555) was concerned with visual identification. Nevertheless, the following passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ is particularly apposite (Domican (1992) 173 CLR 555 at 561-562):

[25]

'Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at 551; R v Turnbull [1977] QB 224 at 228; R v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-619; R v Bartels (1986) 44 SASR 260 at 270-271). The terms of the warning need not follow any particular formula (R v De-Cressac (1985) 1 NSWLR 381 at 384; R v Finn (1988) 34 A Crim R 425 at 435-436). But it must be cogent and effective (R v Dickson [1983] VicRp 19; [1983] 1 VR 227 at 230; Reid (Junior) v The Queen [1990] 1 AC 363 at 380). It must be appropriate to the circumstances of the case ( at 328; at 444-445). Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' ( at 588). A warning in general terms is insufficient ( ; at 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' ( ; at 551). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it ( ; at 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.'"

[26]

[23] In this case, the learned trial judge gave the following warning:

[27]

"I should give you some directions about identification now, in particular the voice identification. The issue of identification is one for you to decide as a question of fact. The case against the accused depends to a significant degree on the correctness of the two voice identifications of the accused - sorry, of - of the complainant because the accused admits that it was his - his voice on each tape. He alleges that the parents of the complainant are mistaken in their evidence that it was her voice they recognised on the tapes. I have to warn you of the special need for caution before convicting in reliance on the correctness of identification evidence of that type. And the reason for this is that it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness can nevertheless be convincing, and even a number of mistaken - even a number of apparently convincing witnesses may all be mistaken.

So you must carefully examine the identification evidence and the evidence of each individual witness, [the complainant's father and mother], while important in itself, should not be regarded by you in isolation from the other evidence adduced at the trial. You could - you should consider the voice evidence along with the other evidence, including the evidence of the accused. Now an identification by one witness may support an identification by another but you must bear in mind that even a number of honest witnesses may be mistaken about such a matter.

...

So you should consider the undoubted fact that [the complainant's father and his partner] would be very familiar with the voice of their daughter ... Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the girl's speech to be familiar with it because in saying that the voice is - the voice on the tape is the - is that of the complainant, the witness is relying on his and her memory of the voice. So the - [witnesses] have clearly heard the voice of [the complainant] for a number of years before they were asked to identify the voice on the tapes.

Now you should consider the quality of the tape-recording, the clarity of the voices, the extent to which there is things said on the tape, the indistinct parts of the tape, the acoustics. Is the tape, having regard to these various matters, sufficient to enable an accurate voice identification to be made? Now the identification here is by witnesses who were obviously very familiar with the voice of [the complainant], and to some extent, familiar with the voice of [Q], and certainly, as I said, [the complainant's mother] says that [Q] could hardly speak any English, and you can make up your mind about that by listening to the tape, Exhibit 39, which is of her speaking. So [the witnesses] were very familiar with the voice of their daughter, and they were - well certainly [the complainant's mother] was familiar with the voice of [Q], and it was suggested to both of them in cross-examination that they were each mistaken about [the complainant's] voice and that it was [Q's] voice, and they each said 'no'.

[28]

[24] It must be said immediately that the risks of erroneous identification, to which the authorities such as Bulejcik v The Queen and Domican v The Queen are directed, hardly arise here at all. The complainant's mother and father were not purporting to identify the voice of the perpetrator of a crime with which they were not familiar: they were identifying the voice of their infant daughter. The content of the warning given by the learned trial judge was sufficient to alert the jury to the dangers generally inherent in voice identification including the risk that honest witnesses may be mistaken, and to the indifferent quality of the tapes in question. Those directions were sufficient in this case, especially when one bears in mind the extent of any real danger that the complainant was not the female party to the conversations recorded in the audio tapes.

[29]

[25] There were, on the evidence, only two candidates in this regard: the complainant and Q, an adult whose first language was Chinese. In the course of these conversations, the appellant made a statement referring to Q in the third person. Counsel for the appellant accepted that this statement by the appellant could be heard on the tape. In truth, the danger of a mistaken identification of the female voice as that of the complainant was slight. That danger was more than adequately addressed by the warning which was given. It was said on the appellant's behalf that the warning was undermined by the learned trial judge's comment that it was an "undoubted fact" that the complainant's parents would be very familiar with her voice. But this observation served merely to give proper balance to the warning which his Honour was obliged to give. In this respect at least, the frailties of human perception and recollection which call for the giving of a warning about the dangers of identification evidence were not present.

[30]

[26] As to the complaint in relation to the learned trial judge's reference to transcript, his Honour used the transcript to identify particular passages of the conversations which had been recorded. It was not suggested on behalf of the appellant that these transcript references did not state accurately what could, in fact, be heard on the tapes.

[31]

[27] The appellant's third argument related to the directions given by the learned trial judge in relation to the use which the jury could make of the appellant's evidence that it was not the complainant but Q in his car on the occasions of the taped conversations of 2 March and 24 March 2005, and his evidence that he had not tongue-kissed the complainant as asserted by CE. The learned trial judge directed the jury that, if they concluded that the appellant had lied on these matters, they could regard that conclusion as reflecting adversely on his credibility.

[32]

[28] The appellant referred to the decisions of the New South Wales Court of Criminal Appeal in R v Mercer[3] and in R v Zheng[4] in support of his argument that this direction was erroneous because the jury could only conclude that the appellant had lied about whether he was in his car with the complainant as opposed to Q if they believed the complainant's evidence in that regard, so that there was no legitimate use that could be made of a conclusion that the appellant had lied in this respect. But this argument, and the cases upon which the appellant relied, are concerned with the inappropriate use of an accused's lies to corroborate the complainant's evidence in respect of the commission of the actual offence which it is said the accused has dishonestly denied.

[33]

[29] In this case, there was no suggestion at all by the learned trial judge that a conclusion by the jury that the appellant had lied about the complainant's presence in his car on the occasion of the two rape counts could corroborate her evidence in respect of those counts. Indeed, his Honour's direction impliedly denied the legitimacy of such reasoning. The learned trial judge simply did not tell the jury that they might treat lies by the appellant as corroboration of the complainant's evidence. It was quite legitimate for the jury to use the appellant's false denials that he was in the car with the complainant on the rape counts as affecting the credibility of his denial of the maintaining charge.

[34]

[30] Before the learned sentencing judge, experienced counsel for the appellant accepted that the range of sentences open to the learned judge was from 16 years to life imprisonment. The appellant now submits that the sentence of life imprisonment was manifestly excessive.

[35]

[31] The appellant was born on 7 June 1951. He was between 51 and 53 years of age at the time of the offences. The appellant has a good work history. For the seven years prior to being convicted, he had owned fishing boats and managed a business. In November 2005, he bought a farm.

[36]

[32] The appellant has a criminal history consisting mainly of offences of dishonesty. For present purposes, the appellant's record of previous offences may be disregarded.

[37]

[33] The learned sentencing judge emphasised the tender age of the complainant. Penile penetration of such a very young victim and the maintenance of a sexual relationship with her over many months are serious aggravating features of this case.

[38]

[34] His Honour referred to the victim impact statements by the parents of the complainant which detailed the devastating impact upon the complainant and complainant's family of the appellant's offences. His Honour adverted as well to the enormity of the appellant's breach of trust.

[39]

[35] The learned sentencing judge rejected the submission made on behalf of the appellant that the appellant's background and history did not indicate that he was likely to commit such offences in the future. The concerns raised by his Honour as to the need to protect children from the appellant were relevant to the sentence by reason of s 9(6) of the Penalties and Sentences Act 1992 (Qld). His Honour said:

[40]

"I think it is likely that given the opportunity you would probably commit further offences in relation to young girls ... I think the evidence does leave it open to conclude that you are a paedophile and are certainly sexually deviant with respect to young children. And this is a case of ongoing serious sexual interference with a young child including many instances of penile rape ... You have expressed no remorse whatsoever."

[41]

[36] The appellant submitted that his Honour erred in concluding that the appellant was likely to commit further sexual offences. It was argued on his behalf that there was insufficient evidence to reach this conclusion bearing in mind the appellant's age and previous record. But the very facts of the present case, in which the appellant cunningly won the trust of the complainant's parents and then persistently and callously abused the complainant, show that this submission cannot be maintained.

[42]

[37] On the other hand, it is apparent from his Honour's reasons that he was strongly influenced to impose a life sentence by the consideration that the appellant "given the opportunity ... would probably commit further offences in relation to young girls". While this consideration was certainly relevant to the sentence imposed, it is also relevant to note that the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) has now established a regime the purpose of which is to protect the community against prisoners who have served their time, but who are nevertheless found still to pose an unacceptable risk of further offending. The existence of this regime makes it unnecessary to speculate whether an offender will "probably commit further offences upon young girls" at the end of what might otherwise be a sentence for a term of imprisonment less than life. The learned sentencing judge did not advert to the existence of this protective regime, or to the circumstance that it obviates the need for a sentencing judge to proceed on the basis of speculation as to the "outer limits" of an offender's dangerous potential for further sexual offending.[5]

[43]

[38] In relation to the argument that the sentence was manifestly excessive, it is not to the point to say that the maximum penalty should have been reserved because it is possible to imagine a worse case of this kind of offending than is presented by this case.[6] On the other hand, the imposition of a sentence of life imprisonment for an offence other than murder is exceptional. It is incumbent on a sentencing judge to consider whether the purposes which are reflected in the sentence could be met by a lesser sentence so as to avoid the "banalisation" of a sentence of life imprisonment.[7]

[44]

[39] It must also be said that there are cases of grievous offending, similar to that which occurred in this case, where a life sentence was not imposed. In R v Knijff,[8] the offender pleaded guilty to counts of maintaining a sexual relationship with each of his two stepdaughters and with his own son over a period of about three years. He had frequent vaginal intercourse with his stepdaughters, he procured his son to suck his penis and procured his stepdaughters to suck his son's penis. On an Attorney-General's appeal, his sentence was increased to 12 years imprisonment. In R v H,[9] the offender had pleaded guilty to sexual offences against three children over a period of 16 years. He raped one of his own daughters and maintained a sexual relationship with her which began when she was five years old. He sodomised his stepson, and he raped a neighbour's child. He was violent towards his children: on one occasion of intercourse with his daughter, he broke her wrist and fractured a rib. He was sentenced to 17 years imprisonment, and that sentence was upheld on appeal. Reference may also be made to R v G,[10] R v DAF,[11] R v HAA[12] and R v PAD.[13]

[45]

[40] These decisions would tend to support a sentence of imprisonment in a case of this kind of offending, where the offender has the benefit of a plea of guilty, of up to 18 years. They do not support a life sentence.

[46]

[41] Reference must also be made, in this regard, to the decision of the Court of Criminal Appeal in R v Luke.[14] In that case, the offender pleaded guilty to one count of rape of a six year old child. The offender had no previous history of sexual offences. His was "a one-off" offence but it was a brutal rape. He was sentenced to life imprisonment, and, on appeal, this sentence was reduced to one of 18 years imprisonment. In the present case, the appellant committed several offences and he is not entitled to the benefit of a plea of guilty. Reference to R v Luke suggests that a sentence of 18 years imprisonment would have been appropriate in this case if the appellant was entitled to the benefit of a plea of guilty. In order to acknowledge that, in the cases to which I have referred, the offenders were entitled to the benefit of a plea of guilty, it might be said that the range of sentence where there is no plea of guilty should extend to 20 years imprisonment. The practical reality is, however, that if a sentence of 20 years imprisonment were to be imposed by this Court, the appellant would not become eligible for consideration for parole until he had served 16 years of that sentence, whereas, in the case of a life sentence, eligibility for consideration for parole arises after 15 years. In order to avoid this anomaly, this Court should impose a sentence of 18 years imprisonment.

[47]

[42] For these reasons, I conclude that the sentencing discretion did miscarry in this case; and it is necessary for this Court to sentence the appellant afresh. For the reasons set out in paragraphs [36] to [39] above, I consider that a sentence of 18 years imprisonment should be imposed in support of each offence, these sentences to be served concurrently.

[48]

[43] The appeal against conviction should be dismissed.

[49]

[44] Leave to appeal against sentence should be granted, and the appeal should be allowed. The sentences of life imprisonment should be set aside and, instead, the appellant should be sentenced to 18 years imprisonment in respect of each offence to be served concurrently.

[50]

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

[51]

[1] R v Griffith (1995) 79 A Crim R 125 at 127 - 128; Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at 655 [10] - [11]; R v Marsh [2005] NSWCCA 331 at [16] - [34].