R v Schneiders

Director of Public Prosecutions (Queensland) for the respondent

[1] WILLIAMS JA: The issues raised by the appellant on the hearing of the appeal against conviction are fully canvassed in the reasons for judgment of Keane JA which I have had the advantage of reading. There is nothing I can usefully add to what is said therein. In the circumstances the convictions should be quashed and a retrial ordered.

[2] JERRARD JA: I have read the judgment of Keane JA and agree with the reasons and orders that His Honour proposes.

[3] KEANE JA: On 14 March 2007 the appellant was convicted upon the verdict of a jury of four counts of indecent treatment of a child under 12 years of age. He was sentenced to concurrent sentences for each offence of 12 months imprisonment, suspended after two months actual imprisonment, for an operative period of two years.

[4] The appellant seeks to appeal against the convictions on three grounds, each of which relates to the directions given to the jury by the learned trial judge. I will discuss these grounds of appeal in turn after first summarising the evidence at trial.

[5] The indictment charged the appellant with acts of indecency with the complainant, a female child born on 16 March 1995, between 16 March 2002 and 16 March 2004. In particular:

• count 1 concerned an allegation that, when the complainant was seven or eight years old, the appellant touched her "on [her] privates", rubbing his hand over her front on the outside of her jeans from neck to thigh, and asked her to lift her shirt up;

• count 2 concerned an allegation that, on a subsequent occasion, the appellant put the complainant's hand down his pants to force her to touch his penis;

• count 3 concerned an allegation that, on another occasion, the appellant masturbated (or simulated masturbation) in the complainant's presence: on this occasion she hid her face behind a banana leaf; and

• count 4 concerned an allegation that, on 29 December 2004, in the complainant's presence, the appellant placed an eggplant on his jeans near his penis and moved his hand over the eggplant before placing one end of the eggplant in his mouth and sucking it. He then began to remove his penis from his pants and the complainant ran away.

[6] The complainant first complained to her mother about the appellant's conduct on 29 December 2004. On 31 December 2004 she was interviewed by police, and the record of this interview was adduced in evidence pursuant to s 93A of the Evidence Act 1977 (Qld). The complainant's cross-examination was pre-recorded on 14 July 2006 pursuant to Pt 4A of the Evidence Act.

[7] The complainant's mother gave evidence of her child's complaint. The mother had been having an affair with the appellant who was a man in his forties who lived on a nearby farm. She told the child's father of the child's complaint against the appellant on 30 December 2004, and, at the same time, informed him of the affair. The complainant's father then went to the appellant's farm and shot him in the leg with rat shot and burned down one of his sheds.

[8] The complainant was asked in cross-examination whether she knew of the affair between her mother and the appellant when she made her complaint. She denied this suggestion. It was not put to the complainant that she had fabricated her complaints against the appellant in the hope of ending her mother's affair with the appellant.

[9] The complainant said that she knew that her father was at the police station at the time she was being interviewed by the police, but she said that she did not know why he was there. The complainant's mother gave evidence that she had not told the complainant about the attack upon the appellant by the father before the complainant and her mother went to the police station. The complainant's mother said that she told the complainant that her father had "got cranky" and had gone to town to tell the police what had happened.

[10] In cross-examination of the complainant, it was suggested to her that she had invited the appellant to her school play and to her school concert at the end of 2004. She denied that she had invited him to these occasions. The complainant admitted, however, that he had taken her to the local swimming pool in his car and that they were alone in the car. The complainant's mother gave evidence that the complainant had invited the appellant to attend a school play and a school concert at the end of 2004.

[11] The complainant attempted to write two handwritten accounts of her complaint against the appellant. She gave one of these to her mother when she complained about the appellant in December 2004, and the other a few days later. The complainant was not cross-examined about these matters, but it may be noted that it is now suggested that the multiplicity of drafts is suggestive of invention.

[12] There were some differences between the account given by the complainant in her interview with the police and her pre-recorded evidence. In this regard:

• count 1 - the complainant told the police that the incident involved the appellant asking her to lift her shirt up and that she ran away from the appellant after he touched her on her groin area on the outside of her jeans, whereas her pre-recorded evidence was that the appellant tried to lift her shirt up and stopped what he was doing when her brother came into the shed and spoke to her. This incident was not mentioned in the letters written by the complainant and given to her mother;

• count 2 - the complainant did not tell the police how the incident occurred but said that the incident ended when she pulled her hand out of his pants and "just went for my walk", whereas her pre-recorded evidence was that she went to the appellant's shed to cook eggs for the appellant's breakfast and was not sure whether she stayed in the shed after the incident occurred;

• count 3 - the complainant told the police that the appellant was shaking his penis or moving his hand up and down for about five minutes, whereas in the pre-recorded evidence the complainant said that she saw only a little of his pulling his "private" out of his pants and quickly hid her head behind a banana leaf;

• count 4 - the complainant wrote in the letters given to her mother and told the police that the appellant was about to get his "private" out when she left the shed, whereas in the pre-recorded evidence she could not remember anything happening other than the appellant putting the eggplant where his "private" was and then him sucking it.

[13] The appellant did not give evidence. He did, however, call evidence from a number of persons. This evidence suggested that the complainant was seen to be friendly towards the appellant in their social interactions over the time when the offences were alleged to have occurred.

[14] The first ground of appeal is that the learned trial judge erred in refusing the request of the appellant's counsel for a redirection to the jury to the effect that the evidence of the complainant should be scrutinised with care prior to the jury accepting it having regard to the complainant's age both at the time of the alleged incidents and of the giving of evidence, the delay in complaint, the "clear evidence" that the complainant had been untruthful in her denials that she had invited him to certain school events, the evidence that she was content to be alone with him, and the existence of a motive to lie or exaggerate. The appellant's submission is that these features of the case, taken together with the absence of any other evidence supporting the complainant's evidence of the appellant's misconduct, were apt, as was said in Robinson v The Queen,[1] to create "a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt."[2]

[15] Robinson v The Queen is authority, binding on this Court, for the proposition that a strong warning may be necessary to ensure fairness to the accused in circumstances akin to those of this case even though the ramifications of these circumstances for the jury's assessment of the reliability of the complainant's evidence may be as apparent to the jury as they are to the judge.[3] Quite apart from the fact that the complainant was a young child, the circumstances of the continuation of friendly relations between the complainant and the appellant, the absence of explanation for delay in making the complaint and the crucial nature of the uncorroborated evidence of the complainant are circumstances which, on the authority of Robinson v The Queen, may be said to create a risk of wrongful conviction calling for a special warning to the jury.[4] It is, however, unnecessary in this case to attempt to resolve this question independently of the issues which arise in relation to the third ground of appeal.

[16] The appellant complained in the written submissions filed on his behalf that the learned trial judge's direction in relation to the meaning of the term "indecent" was inadequate to bring home to the jury the seriousness of misconduct which satisfies the meaning of this term.

[17] The learned trial judge directed the jury as follows:

"A dealing is indecent if the activity which constitutes it is such that ordinary decent people in the community would in the circumstances conclude it was indecent. The word indecent bears its ordinary everyday meaning. It is that which offends against currently accepted standards of indecency [sic]."

[18] On the appellant's behalf, it was submitted that this direction was not apt to convey that moral turpitude is essential to indecency as was explained in R v Bryant.[5]

[19] This submission, which was not pressed in oral argument, must be rejected. It fails to appreciate that the learned trial judge supplemented the direction about which the appellant complains by tying the general and abstract question as to what is meant by indecency to the particular and concrete circumstances of the charges against the appellant. In this regard, the full direction was in the following terms:

"Now, the incident the offence or the charge relates to is her description of the touching over her body but down in the area of the genitals, in her lap, and trying just to lift her top up. If that occurred, as she says it did, then there is a dealing with the child. A dealing with is a handling such as she has described. A dealing is indecent if the activity which constitutes it is such that ordinary decent people in the community would in the circumstances conclude it was indecent. The word indecent bears its ordinary everyday meaning. It is that which offends against currently accepted standards of indecency. Now when I talk about 'in all the circumstances', part of the circumstances are a man of the age of the accused man and a female child of the age this child was at the time. In most people's mind there would be an entirely different complexion put on a touching of that nature when it occurs between a mature man and a young girl and when it occurs between two adult people who are in a relationship with each other."

[20] In the light of this direction, there can be no doubt that, if the jury found that the appellant conducted himself as the Crown alleged, the jury were bound to find that his conduct was indecent. Neither at trial nor on appeal was any submission to the contrary made on behalf of the appellant.

[21] The appellant's third ground of appeal is that the learned trial judge failed to put the defence case before the jury. In particular, in this regard, it is said that the learned trial judge failed to put before the jury the specific weaknesses in the Crown case insofar as it was dependent on the appellant's evidence.[6] The appellant goes further and submits that the summing-up was tilted against the appellant because, while it directed the jury as to how they might reason to a conclusion of guilt, the points which might fairly be made in favour of the defence were not mentioned to the jury. The appellant also argues that the learned trial judge's direction to the jury in relation to his decision not to give evidence did not afford him adequate protection against the possibility that the jury might reason that the absence of evidence from the accused strengthened the Crown case.

[22] The learned trial judge's directions to the jury included the following:

"Keep in mind you are dealing with the evidence of [the complainant], the child complainant. You are dealing with a child or, at least, you are considering the responses and the evidence of the child of the age she was at the time which is material to your consideration. She is not or was not a miniature, mature woman. So that to approach the matter as if her responses should have been those of a mature woman is completely wrong. She was a child of the age she was when she says these things occurred, and in judging, if you are, things she did or did not do, you should keep that in mind, as I am sure you will."

[23] It may be said immediately that this direction was not apt to alert the jury to a need to scrutinise with care the evidence of the complainant because of the circumstances of the case apart from the fact that she was a young child: if anything, this direction was apt to lead the jury to make allowances in the complainant's favour for matters which were legitimate subjects of comment by the defence. I will shortly return to discuss this point.

[24] In relation to the appellant's failure to give evidence himself, the learned trial judge said to the jury:

"Now, in this trial he did not give evidence himself. I asked him whether he wished to adduce evidence. His barrister, on his behalf, told me he would not but he would call evidence from other witnesses. Now, because he did not give evidence himself, you should not from that draw any inference adverse to him. He is not obliged to give evidence. He is not obliged to prove his innocence. The onus of proof is on the prosecution. So he was quite entitled to do what he did, not give evidence himself. All it means is that you do not have any sworn evidence in this case which comes from his mouth. What you must do, therefore, is look to the evidence you do have, that is, the evidence that came before you in the prosecution case and the evidence that came before you in the defence case and ultimately consider when you consider all that evidence whether the prosecution has proved guilt to the standard required by the criminal law."

[25] The appellant relied upon the statement of White J, with whom McPherson JA and Cullinane J agreed, in R v DAH[7] that one of the essential elements of a direction sufficient to guard against impermissible reasoning by a jury from the circumstance that an accused has not himself given evidence is that "the failure to give evidence does not strengthen the prosecution case or supply additional proof against a defendant ...". This is an essential part of a proper direction which is required to ensure that the jury does not regard the evidence of Crown witnesses as more reliable than would have been the case if the accused had chosen to contradict it.[8] This aspect of the necessary direction was absent from the direction given to the jury in this case.

[26] The learned trial judge's summing up returned to the subject of the complainant's evidence. His Honour said:

"Now, these are separate charges and you must approach them separately. It is not the case that if you considered he was guilty of one, therefore he was guilty of others or another. Nor the converse. You must consider each charge, consider the evidence which bears upon that charge. Consider all the evidence in the case - that may touch upon questions of whether you accept the evidence of witnesses - and ultimately decide whether in the case of that offence you are satisfied by the evidence beyond reasonable doubt that the accused man is guilty of that charge.

Now, just for a moment touching on the evidence of [the complainant], if you find that you have a reasonable doubt concerning the truthfulness or reliability of her evidence in relation to one or more of the offences in the indictment, whether because of her demeanour or for any other reasons, then you must take that into account in assessing the truthfulness or reliability of her evidence generally. Your general assessment of her will be relevant to all of the offences but you have to consider her evidence with respect to each offence when considering that offence. It may occur in respect of one of the offences that for some reason you are not sufficiently confident of her evidence to convict in respect of that count. It may be a situation where in relation to a particular offence you get to the point where, although you are inclined to think she is probably right, you have some reasonable doubt about an element or elements of that particular offence. If that occurs, of course, then you would find the accused man not guilty of that particular offence. That does not necessarily mean you cannot convict of any other of the offences. You have [to] consider why you have some reasonable doubt about that part of the evidence of [the complainant] and consider whether it affects the way you assess the rest of her evidence, that is, whether your doubt about that aspect of her evidence causes you also to have reasonable doubt about her evidence relevant to any other of the particular charges.

... perhaps I should say this to you: you might think that [the complainant] was probably aware that there was some relationship between her mother and the accused man, at the least that they were good friends or close, at least over portion of the time she was going over there. Now, you might also think - it is a matter entirely for you - that the incidents which she says occurred were not in their description the most serious of descriptions of this sort of conduct. In her description there is no assertion of violence or threats or even of persistent force. At the very most, on her account, he put her hand inside the front of his pants on one occasion but when her hand contacted his penis she pulled it away and he did not seriously try to prevent her from doing that. His touching of her on her account of things amounted to his putting his hand in her lap or over her genital area over the top of her clothes and rubbing and also of touching her on other places of her body - I think she said 'up top' on one occasion - and trying to lift her shirt up or wanting her to lift her shirt up. He did not go on with it. In short, her account is that she resisted what he did and removed herself from where it was occurring. She coped with it, in other words. Mind you, a child of that age, if this sort of thing was occurring, should not have to cope with this sort of thing from an adult male, but on her account of things she was coping with what was happening. Now, you may also consider that if these things were occurring they may have a cumulative effect so that whilst she copes with it for some time eventually she comes to feel that she has to tell no matter what the consequences of her telling may be.

You may think that when you have a child, which you are dealing with in this sort of context, you need to consider the overall context or power relationships in which the child is at the time in question. She says that it is an adult who, as I have said, you may think is close to her mother who is doing this, only intermittently and he is not forcing her, but he is doing this sort of thing occasionally and she is coping with it, but eventually she tells her mother and she tells her mother in the context of, at least on the defence case, her mother being unhappy with the relationship not progressing as she would wish. Well, it is all a matter for you. I have mentioned those matters because they are matters that no doubt you would consider when you are considering the evidence overall."

[27] Mr Kimmins of Counsel who appeared for the appellant criticised these observations as directions given by the learned trial judge with the authority of his Honour's office. That criticism is not entirely accurate, in that his Honour made it clear that his observations on the evidence were merely comments by him which the jury were free to ignore. In truth, his Honour's remarks were the kind of comment which a trial judge is entitled to make under s 620(1) of the Criminal Code 1899 (Qld) whereby a trial judge may, in summing up to the jury, make "such observations upon the evidence as the court thinks fit to make". Nevertheless, any comments which a trial judge makes to the jury must not be apt unfairly to influence the jury. In the present case, the learned trial judge's remarks appear to have been in the nature of an answer to points made for the defence without an express reminder to the jury of those points.

[28] Far from drawing the attention of the jury to the features of the case relied on by the defence which called for careful consideration before the complainant could be accepted as a reliable witness, these comments by the learned trial judge proffered a possible explanation for the delay by the complainant in making a complaint about the appellant. His Honour suggested that the complainant may have known about the relationship between her mother and the appellant, and that this, coupled with the minor nature of the matters of which she complained, might afford a good explanation for her delay in making a complaint about the appellant's conduct. And his Honour failed to mention at all the issue raised by the defence as to whether the complainant had attempted falsely to minimize the extent of her voluntary association with the appellant.

[29] The learned trial judge went on to say to the jury:

"Her account to the police officer in terms of its likelihood or in terms of its reliability you might think is probably somewhat more reliable if you are accepting her evidence about what she says occurred because that account took place much closer to the events and certainly to the last event she describes. That account, you may remember, was quite a jumbled one in the sense that she was not directed to a particular incident and then asked detailed questions about that until they exhausted all the detail about that incident. Rather, her account about various things came out as a bit about this incident here, another bit about another incident there and then she went back and forth, back and forth, back and forth. You have seen it and if you wish to see it you may see it again. Mr Reilly dealt fairly extensively with it in his address and with the pre-recording of her evidence in 2006. He precis'd or summarised what he says or said to you she said in those various interviews. He did not, by any means, deal with everything she said and he picked parts of what she said that he wished to emphasise to you. Now, what he said to you in his address about the evidence of the child is not evidence. It is what is contained in the child's account which is her evidence about these matters, and if these matters are important to you then you should go back to the source of the evidence and review it again.

And, of course, if you think there are significant inconsistencies between what she said in what she wrote and what she said to her mother on that occasion with what she says in Court, then that may damage her credibility in your eyes. It is a matter for you.

To find the accused man guilty of a charge, you must be satisfied beyond reasonable doubt that [the complainant's] evidence about the incident the subject of the charge is truthful and accurate or truthful and reliable and that it establishes the elements which make up the offence. Could I just say that again? The charges are based upon the evidence of [the complainant]. To find the accused man guilty of a charge, you must be satisfied beyond reasonable doubt her evidence about the incident the subject of the charge is truthful and reliable and that it establishes the elements which make up the offence." (emphasis added)

[30] On the appellant's behalf, it was submitted that this direction was apt to distract the jury from a proper consideration of the inconsistencies between the complainant's versions of the appellant's misconduct by suggesting that any concern about the inconsistencies could readily be resolved by treating the version contained in the

s 93A interview as the more reliable version. There is force in this submission. The differences in the versions given by the complainant which are set out in paragraph [12] above were sufficient to require consideration by the jury of the question whether any of the versions were reliable. In saying this, I am not in any way suggesting that the complainant's evidence on crucial matters was not reliable: I am saying only that it should not have been suggested that these differences could be resolved simply by adopting the complainant's s 93A version.

[31] In my respectful opinion, the absence of a full direction in relation to the appellant's failure to give evidence himself, and the failure by the learned trial judge to balance his comments tending to encourage the jury to treat the complainant as a reliable witness by reference to the substantial points made by the defence mean that the directions given to the jury were not sufficient to ensure the appellant a fair trial.

[32] The appeal must be allowed and the appellant's conviction must be set aside.

[33] On the appellant's behalf, it was submitted that he has served the term of actual imprisonment imposed on him; and that this Court should enter a verdict of acquittal in his favour. But the grounds on which the appellant has succeeded do not involve an assertion that the appellant could not have been convicted by a reasonable jury properly instructed.

[34] Accordingly, in my respectful opinion, there should be an order for a new trial. Whether in the circumstances there is any utility in proceeding with a retrial is a question for the prosecutorial discretion of the respondent.

[1] [1999] HCA 42; (1999) 197 CLR 162.

[2] Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 at 171 [26].

[3] Tully v The Queen [2006] HCA 56 at [50] - [54], [87] - [92], [156] - [162], [172] - [186].

[4] R v Tichowitsch [2006] QCA 569 at [75] - [81].

[5] [1984] 2 Qd R 545.

[6] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41] - [42]; Tully v The Queen (2006) 231 ALR 712 at 724 [49], 730 [75]; R v FP [2007] QCA 97 at [20].

[7] [2004] QCA 419 at [86].

[8] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [51].