R v S [1998] QCA 71

So far as material, the evidence for the prosecution at the trial consisted primarily of the testimony of the complainant, her mother, and a school teacher, to whom the complainant had complained about the appellant's conduct in June 1992 and again in 1994. In addition, there was cogent evidence of admissions made or repeated by the appellant to his psychiatrist in January 1995; and also in a tape-recorded telephone call between the appellant and the complainant which she made from the Kirwan Police Station, where she had reported the offences. The appellant himself gave evidence at the trial, in which he generally denied having committed the offences and explained his admissions as being the result of hallucinations due to his psychiatric condition at the time.

At the hearing of the appeal, grounds 1 and 2 in the notice of appeal were abandoned; but leave was granted to add two further grounds numbered (i) and (ii). Ground (i) relates to the verdict of guilty returned in respect of count 2 (maintaining an unlawful relationship of a sexual nature) and complains that the learned trial judge failed to adequately direct the jury with respect to that offence. As regards the conviction for that offence, the appellant relied on passages in the joint judgment of Brennan C.J., Toohey, Gaudron, and Gummow JJ. in KBT v. The Queen (1997) 72 A.L.J.R. 116, at 118-119. Before referring to them in detail, it is necessary to set out the terms of the relevant provisions of the Criminal Code.

Section 229B(1) of the Code was originally inserted in the Code in 1989. It consisted then of several paragraphs, which have since been renumbered as subsections. In the form in which the relevant provisions stood at the time of the subject offences, they were as follows:

"229B (1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years.

(1A) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions."

In the course of examining these provisions in KBT v. The Queen, their Honours in their joint judgment said this about them (72 A.L.J.R. 116, 118 col. 2C - E):

"The offence created by s.229B(1) is described in that subsection in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of subs. (1A) makes it plain that that is not the case with the offence created by s.229B(1). Rather, it is clear from the terms of subs. (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in subs. (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s.229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts."

In the present case the learned trial judge directed the jury that, before convicting of the offence in count 2, they must be satisfied that the acts alleged had occurred on three or more occasions during the time frame stated in that count. What, however, is said to be fatal to the conviction on count 2 is that he failed to instruct the jury that they must also be unanimous in finding that the same three or more such acts had been committed.

The statement in the joint judgment in KBT v. The Queen that "the actus reus of that offence is as specified in sub-s.(1A) rather than maintaining an unlawful sexual relationship" may, with respect, be capable of producing a somewhat surprising result in a case where, for example, the three acts in question all occurred in the course of the same day, or perhaps even within the same hour of that day. It would in those circumstances be difficult to regard the accused as "maintaining a sexual relationship", according to the natural meaning of those words, over so short a period. Fortunately, however, we are not faced here with a state of affairs like that. The limits in time of the offence charged in count 2 were the period of seven months from 1 January 1992 to 31 July 1992. The evidence of the complainant about what happened during and immediately before that period was briefly as follows. She said, first, that during the summer holidays of 1991/1992 the appellant and she had gone to stay with his sister at Mt. Eliza and then with his parents at Maryborough in Victoria. One night at Mt. Eliza he had come to the bedroom where she slept with her cousin and touched her on the breast. At Maryborough, they were sleeping in the same bedroom, she in a bed and the appellant on a mattress on the floor. She woke to find that he had pulled her nightie up and was touching her breasts, which he also started to lick. This conduct was repeated even after she had moved into a separate room in the house, and was then extended to his putting his hand inside her pants and his finger inside her vagina.

After staying three or four weeks in Victoria, they returned to Townsville towards the end of January 1992. It was the practice in their family for the parents every night to come and say goodnight to the complainant after she and her two sisters had gone to bed and shut the doors of the rooms in which they slept. At the time she suffered from pains or stiffness of the neck, and the appellant would come into the room, which she then occupied on her own, and massage her neck and shoulders. On their return from Victoria, he continued to do what he had done while they were there. After rubbing her neck, he would pull her nightie up, lick her breasts, and then put his hand down her pants and insert his finger in her vagina. Asked how often this had happened, she replied "Every night, except if I had a period".

In cross-examination the complainant later explained that, if she had a period, he would only touch and lick her breasts. Asked in chief how long the appellant's conduct had continued, her answer was from January, when they had got back to Townsville, until June or July of 1992. She had then prevented the appellant from going on with it by wrapping herself up in her blankets and holding them tightly about her, so that he could not pull them off; after a few minutes he would give up and go out of the room. Eventually, he stopped altogether. It was during this time that she complained of the appellant's behaviour to her school teacher.

The case KBT v. The Queen was one in which, as both this Court and the High Court decided, it was not possible to be sure that, in returning a verdict of guilty under s.229B(1), all members of the jury had been satisfied beyond reasonable doubt that precisely the same three acts had been committed. The trial judge in that case as in this, had failed to direct on the need for unanimity about the same three acts. There, however, the evidence disclosed six different broad categories of sexual acts, varying in character, place of commission and times of day, committed repeatedly but discontinuously during a period of approximately 19 months. The present instance is one in which, having regard to the form in which the evidence was given, it is not possible to say that the jury might perhaps not have agreed or been satisfied about the same three or more identical acts. The complainant testified at the trial that the appellant's conduct of which she gave evidence had taken place every night during the period from their return to Townsville in January 1992 until June or July of that year. A direction of the kind required in KBT v. The Queen would therefore have been meaningless, and consequently potentially confusing, to the jury in the present case.

It was nevertheless submitted that the jury, or some members of the jury, might have doubted whether her evidence to that effect was entirely accurate. There might have been some nights when, despite what she said, the appellant did not do any of the acts required under s.229B(1A) and the jurors might not have been unanimous about precisely which occasions they were. But her evidence about what had happened was not capable of being dissevered or applied distributively in that way. If there was in fact a particular occasion during the period when the appellant did nothing at all to the complainant, no member of the jury was in a position to identify or entertain a doubt about it that would have formed a foundation for differentiating his or her decision in relation to a particular occasion from that of any other juror on the same matter. Taken at face value, the complainant's evidence literally extended to every night in the period of some 150 or so nights between late January and the end of June or July 1992 comprehended in count 2. It covered many more than three occasions. According to the evidence she gave, no single act or occasion was distinguishable from any other such act or occasion so as to invite or permit the kind of potential dissension or disagreement envisaged in KBT v. The Queen. The jury were therefore left with no choice other than to reject, or entertain a doubt about, the whole of her evidence, or to accept its substance, which is what they did.

In contrast to KBT, it could therefore make no difference to the result in this instance that the learned trial judge did not direct the jury that, in order to convict, they must be unanimous about the same three acts. Short of acquitting altogether on count 2 by reason of a doubt about the veracity or accuracy of what the complainant said in her evidence, they had no option but to fix on the same three or more acts for the purpose of s.229B(1A). It was nevertheless submitted that a further passage in the reasons of Brennan C.J., Toohey, Gaudron, and Gummow JJ. precluded a verdict of guilty under s.229B(1) in a case like this. That passage is as follows (72 A.L.J.R. 116, 118 col. 2G to 119 col.1A-B):

"It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of 'an act defined to constitute an offence of a sexual nature ... on 3 or more occasions' for the purposes of s.229B(1A). Moreover, if the prosecution evidence in support of a charge under s.229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s.229B(1A)."

However, it will be seen that, what their Honours said there, was no more than that evidence of a general course of sexual misconduct was not "necessarily" evidence of acts of a sexual nature on three or more occasions for the purpose of s.229B(1A). Their observations to that effect were addressed not to the admissibility or to the use of such evidence for that purpose, but to the weight or probative value of the evidence. So much is shown by their final remark in the passage quoted that it was difficult to see that a jury could ever be satisfied by such evidence as to the commission of the same three acts. Here, however, the complainant's evidence was confirmed by the appellant's confession to his psychiatrist Dr Trott that the appellant had, from when the complainant was aged 14 to 17, continually been touching her breasts and her genitalia. Further confirmation appears in the tape-recorded telephone conversation with him that was made by the complainant from the police station. There was in the present case therefore no difficulty in seeing that the jury could legitimately be satisfied as to the commission of the same three (and more) sexual acts in accordance with s.229B(1A).

The decision in KBT v. The Queen is therefore distinguishable. The evidence in this instance is, however, exceptional. If s.229B(1) is to perform its function in most future prosecutions of this kind, legislative attention is needed to ensure that s.229B(1A), or as it now is s.229B(2), operates only as an evidentiary aid or exclusion and is not expressed in a form capable of being regarded as serving to define the offence or its actus reus under s.229B(1).

Ground (ii) of the appeal is directed to the evidence of what the appellant had done to the complainant while they were in Victoria. Because those events took place outside Queensland, and so were committed extra-territorially, they were not capable of constituting elements of the offence under s.229B(1) as having been committed in this State. They were, however, capable of proving the initiation and existence of a sexual relationship of the kind envisaged by s.229B(1), and so were relevant to proving the fact that it was maintained in Queensland after the appellant and complainant returned here in late January 1992. To that extent, the relevance of what happened in Victoria was admissible for much the same purpose or reason that in R. v. Elhusseini [1988] 2 Qd.R. 442 the evidence of drug trafficking in Sydney was relevant to proof of the carrying on of a drug trafficking business in Queensland. If, as is accepted in the majority judgment in KBT v. The Queen, the actus reus of the offence under s.229B(1) is the doing of an act which constitutes an offence of a sexual nature on three or more occasions, then the sequence of events in Victoria remained relevant to and probative of the fact that there was an element of continuity in what was done in Queensland. The decision in KBT v. The Queen does not relieve the Crown of the need to prove that the sexual relationship specified in s.229B(1) was "maintained" for some period of time rather than being a discontinuous succession of sporadic and isolated incidents. The evidence of what had happened in Victoria tended to serve that purpose, as well as explaining how and when the relationship had been initiated: cf. R. v. Grech [1997] 2 V.R. 609, 611.

The learned trial judge was careful to stress that it would not be enough for the Crown to prove merely that certain events occurred in Victoria, and he also emphasised that, before convicting, the jury must be satisfied that three instances of indecent dealing had occurred in Queensland during the time frame alleged. In complaining that his Honour had failed to direct the jury in relation to the evidence of sexual acts other than those charged, Ground (ii) is, for reasons that have been given, not capable of being sustained in relation to the conviction on count 2. As regards counts 3 and 4, the complaint has some possible relevance. They were two isolated instances of sexual acts not falling within the limits of time specified in count 2 or capable of establishing the offence charged in that count of maintaining a sexual relationship.

Count 3 (indecent assault) related to an occasion in March or April 1994 when, in the course of giving the complainant a hug, the appellant put his hand outside her clothing on her breast. She said "Don't" and pushed his hand away, to which the appellant responded "Oh, it feels nice". This incident was the subject of the complaint to the teacher in 1994. Count 4 charged as wilful exposure an occasion when the appellant was in the bath and asked the complainant to bring him a glass of water. When she did so, she saw that his penis was erect. The appellant admitted the occasion but not that he exposed his penis.

As regards these two offences, reliance was placed on BRS v. The Queen [1997] HCA 47; (1997) 71 A.L.J.R. 1512, holding that, in respect of evidence admitted at the trial of sexual acts other than that or those charged, the jury must be warned of the limits on the use that might be made of such evidence, and in particular that it was not to be treated as evidence of propensity leading to a positive conclusion of guilt as regards the offence charged. BRS v. The Queen was a case in which the evidence was of other acts committed on or with a different victim; but there is little doubt of the need for an appropriate warning or explanation even where the same victim has been the target of those other acts. See, generally, R. v. K [1997] 1 Qd.R. 383; R. v. Grech [1977] 2 V.R. 609; R. v. W (C.A. 349 of 1997; 21 Nov. 1997 unrep.). In the last of these cases Pincus J.A. and Muir J. said that there was a degree of artificiality in holding that the evidence of uncharged offences could properly be used to show the existence of a sexual relationship between the accused and his victim, but not to show a mere propensity to commit offences of the kind in question. The artificiality is even greater in this case, where the Crown charged the appellant with and secured a guilty verdict on count 2, which involved proof beyond reasonable doubt that the appellant had at an earlier time maintained a sexual relationship with the complainant. In most cases it would be almost impossible to explain to the jury in a satisfactory way that the evidence to that effect should not be used as indicating a predilection on the part of the accused to commit indecent acts on his victim. The artificiality is heightened in the present case when the comparatively minor nature of the acts in counts 3 and 4 are considered, and when it is also recalled that the complaint in ground (ii) is specifically limited to the incidents in Victoria that were not the subject of any charges against the appellant at his trial (see appellant's written outline, para.9, 10).

Mr Bullock, who appeared for the Crown on the appeal, submitted that even if "technically" the warning was called for, this was a case in which it was appropriate to apply the proviso to s.668E(1) of the Criminal Code. In addition to the matters already mentioned, the structure of the summing up lends weight to that submission in this instance. Having first explained in clear terms that each of the four charges in the indictment were to be considered separately and that a particular verdict on one charge did not mean that the same verdict was to be given on another charge, he went on to sum up in some detail on each of the isolated charges in counts 1, 3 and 4 before instructing them on count 2. The jury were evidently attentive to that explanation because they returned a verdict of not guilty on count 1 but of guilty on the other three charges. The events that took place in Victoria were mentioned only at the end of the summing up on count 2, and then only with a view to ensuring that the jury appreciated that for the purposes of that count they must be satisfied that three incidents of indecent dealing were proved to have occurred in Queensland and not in Victoria. There was no request for any redirection. In these circumstances there can be no real doubt that, even if the appropriate warning had been given, the jury would inevitably have convicted the appellant of the two offences charged in counts 3 and 4.

The appeal against conviction should be dismissed. As to the appeal against sentence, individual terms of imprisonment for two years, to be served concurrently, were imposed in respect of counts 2, 3 and 4 of which the appellant was convicted. A term of imprisonment for two years might have been considered severe for the conduct of the relatively minor character of that charged in counts 3 and 4; but it was well within the range of a proper sentencing discretion for the offence involved in count 2. It is the appropriateness or otherwise of the effective penalty for the overall criminality of the offender that is the critical matter on appeal. As to that, Mr Rafter conceded that, unless the appeal against conviction on count 2 succeeded, the application for leave to appeal against the sentences imposed on counts 3 and 4 was bound to fail. That being so, that application, like the appeal against conviction, must be dismissed.