R v. TP ; R v SBA [2007] QCA 169

Judgment (209 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRAIGE OR IN WHICH MISCARRAIGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - GENERALLY - where appellant T claimed that evidence in S's case contained prejudicial statements that were of little probative weight - where it was also claimed that the trial judge failed to give adequate directions on that evidence - where separate trials were requested - whether this led to a miscarriage of justice

[2]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where the complainant's husband was permitted to sit behind the complainant while she gave evidence at trial - where the learned trial judge identified the witness as the complainant's husband - where the learned trial judge told the jury that the husband "knew" what had happened and was supporting the complainant - whether this constituted by implication an inadmissible and irrelevant favourable opinion of the husband, supporting the complainant's credibility

[3]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where the learned trial judge made comments on the evidence during the summing up - where both appellants claimed the summing up lacked balance - where there was a subsequent redirection - whether the redirection was adequate

[4]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where evidence was given regarding the appellant T teaching the complainant to masturbate - whether the evidence was irrelevant and inadmissible - whether the admission of the evidence led to a miscarriage of justice

[5]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where there was conflicting evidence adduced at the trial - where the learned trial judge had given a direction as to the resolution of conflict between the evidence - whether the direction adequately conveyed the requirement to convict only if guilty beyond a reasonable doubt

[6]

Criminal Law (Sexual Offences) Act 1978 (Qld), s 5(1)(h)

[7]

Evidence Act 1977 (Qld), s 21A(2)

[8]

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, cited

[9]

Longman v The Queen [1989] HCA 60; (1998) 168 CLR 79, applied

[10]

R v Bolic and Judd [1969] Qd R 295, applied

[11]

R v Falzon [1990] 2 Qd R 436, considered

[12]

R v Lewis [1996] QCA 467; CA No 85 of 1996, cited

[13]

R v Lowery [1974] AC 85, followed

[14]

R v Randall [2004] 2 All ER 467, considered

[15]

R v Tooma [1971] Qd R 212, considered

[16]

Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531, distinguished

[17]

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, applied

[18]

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, considered

[19]

M J Copley for the respondent in CA No 289 and CA No 295

[20]

Legal Aid Queensland for the appellant in CA No 289

[21]

Director of Public Prosecutions (Qld) for the respondent in CA No 289 and CA No 295

[22]

[1] McMURDO P: The appellants, T & S, were each charged with one count of indecent dealing with a child under 16 years between 1 November 1991 and 1 February 1992 (count 1); one count of rape between 1 February 1994 and 1 May 1994 (count 2) and another count of rape between 1 September 1994 and 30 September 1995 (count 3). The complainant was T's daughter. S was T's boyfriend, a retired police officer in his late 50s at the time of the offences. On the evidence presented at trial, the complainant was 14 years old at the time of count 1 and 16 years old at the time of counts 2 and 3. She was 28 years old and was married with two children when she gave evidence at trial. Both T and S have appealed against their convictions.

[23]

[2] I agree with Jerrard JA that S's appeal against conviction should be dismissed for the reasons he gives.

[24]

[3] I turn now to T's appeal against conviction. She contends that she should have been granted a separate trial from S; that evidence tendered in S's case contained significant prejudicial statements which had little or no probative weight; that the trial judge failed to give adequate directions on that evidence; that there was an irregularity in the trial in that the complainant's husband as support person sat behind her as she gave evidence and the judge unfairly highlighted his role in the summing-up; the summing-up lacked balance; and there was a miscarriage of justice because of the admission of irrelevant evidence about T teaching the complainant to masturbate. The grounds of appeal, that the role of the complainant's husband as support person during the trial was irregular and that the summing-up lacked balance, were also relied upon by S.

[25]

[4] Jerrard JA, in dealing with S's appeal against conviction, has set out the relevant evidence at trial. I will only repeat or add to this where it is necessary to explain my reasons in T's appeal.

[26]

[5] The prosecution case turned on the complainant's evidence which was given convincing support by copies of photographs, said to have been taken by T, of the teenage complainant having sexual intercourse with S. S gave evidence denying count 1 and that he honestly believed the complainant was consenting to counts 2 and 3 because T, she and he had all jointly agreed and planned that he would impregnate the complainant. T did not give evidence but her case put to the complainant in cross-examination was that the events in count 1 did not occur, T played no part in arranging the events in count 2 and did not learn of them until two years afterwards; and that the complainant was a willing participant in the events surrounding count 3.

[27]

Separate trials, the admissibility of evidence tendered in S's case and the judge's directions on that evidence

[28]

[6] The first three grounds of appeal are interwoven and are best dealt with collectively. T unsuccessfully sought an order for a separate trial under s 597B Criminal Code 1899 (Qld) ("Criminal Code") at a pre-trial hearing. T does not contend that the refusal of that application was an error but rather, that once S gave and tendered evidence, the trial judge should have ordered a separate trial in T's case to avoid the miscarriage of justice; the judge's relevant jury directions did not prevent that miscarriage of justice.

[29]

[7] T emphasises the following aspects of the evidence at trial. The complainant agreed in cross-examination by S's counsel that T was obsessed with S and thought that if the complainant bore his child, he would live with T and the complainant; a tree on S's property which featured in count 3 was engraved, "[S] and [T], our eternal life, enduring love of my own flesh and blood forever more as one". When T and the complainant lived in New South Wales, T would drive to S's home in the morning, take him to the railway station and collect him in the afternoon. She would become emotional if he did not return, phoning hotels and sending the complainant into hotels to find him. T believed she could no longer have a child and suggested that the teenage complainant have S's baby for her. T eventually fell pregnant to him. T researched S's family crest and had it tattooed on her lower abdomen. On an occasion separate from the charges, T photographed the complainant naked. The complainant said she had sex with S on the occasion specified in count 2 because she was terrified of T and S. T arranged and encouraged the acts constituting counts 2 and 3. She took the complainant when she was a child to King's Cross in Sydney and threatened to leave her there if she did not behave. In 1994 T took the complainant and her younger brother to a hotel to watch strippers for a treat for the brother; T's moods and behaviour throughout the complainant's childhood were erratic.

[30]

[8] S gave evidence that T was besotted with him; she was desperate for him to leave his wife and live with her; she had emotional problems, weird ideas, was controlling and she threw her teenage daughter at him; T had told him she had been abused by her own father as a child and was emotionally disturbed by the attempted suicide, ultimately successful, and surrounding unhappy circumstances of her late husband, the complainant's father.

[31]

[9] T places particular weight on the following exhibits tendered in S's case: photographs taken by T of the engraved tree (ex 3) and assorted photographs of the naked complainant, including many in which she was having sexual intercourse with S (these are included in exs 4-21; many duplicate photocopies of photos contained in ex 2 and tendered in the prosecution case); a letter written by the complainant to S which she said T dictated to her (ex 22); a letter dated 28 September written by T to S expressing her love, her sexual passion for and obsession with him (ex 24); an undated Easter card and note sent with love and birthday wishes from T to S (ex 25); a card dated 4 June 1994 from T to S expressing her eternal love for him, her hope that the complainant would have his child, of the complainant's love for him and questioning whether his current sex life was "... the same as I give you ... head jobs, anals, in all the ways and places of fucking possible and sharing my own flesh and blood with you, shaving you, massaging, ..." (ex 26); and a card and letter written by T to S dated 5 July 1994 in which T likened the card's copy of a romantic painting of naked women to the complainant and her, explicitly fantasising about the sexual exploits that S, the complainant and she might have (ex 27).

[32]

[10] T's trial counsel did not object to the tendering of these exhibits in S's case. The exhibits were admissible as they were capable of being seen by the jury as supporting the possibility that S honestly and reasonably believed the complainant was consenting to counts 2 and 3 even if she was not in fact consenting. Because T and S were being jointly tried, once the evidence was tendered in S's case, it became evidence in T's case; it showed the unusual relationship between the three protagonists during the period covered by the charges: R v Rudd[1] and R v Lowery.[2] It may be doubtful whether in a joint criminal trial there is a discretion to exclude evidence admissible to support one co-accused but prejudicial to the other: R v Randall[3] but cf R v Falzon.[4] T's argument is rather that once the evidence was tendered in S's case, the jury should have been discharged in T's case. T's trial counsel made no such application.

[33]

[11] Section 597B Criminal Code relevantly provides:

[34]

"When 2 or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons or any of them shall be had separately from the trial of the other or others of them, and for that purpose may, if a jury has been sworn, discharge the jury from giving a verdict as to any of the accused persons."

[35]

[12] It is perhaps arguable that a literal reading of s 597B gives a trial judge a discretion to order a separate trial only on an application of one of the accused persons. As I have noted, T's trial counsel made no such application. I accept that a trial judge always has a discretion to order a separate trial for a co-accused at any time during the trial, even without an application from or on behalf of an accused person. But, for the following reasons, I am not persuaded that the trial judge, in not discharging the jury from giving a verdict in T's trial, has caused a miscarriage of justice.

[36]

[13] When two or more accused persons are charged jointly with offences committed by them, separate trials are not commonly granted: Webb v The Queen,[5] Ali v The Queen[6] and R v Lewis.[7] There may, however, be dangers for one accused person in a joint trial, following from the receipt of evidence admissible on the trial of another accused person. A trial judge must give appropriate careful directions as to the use to be made of such evidence. The directions given will turn on what is required in each case to ensure balance and fairness between the co-offenders. In an exceptional case, a trial judge may order the discharge of the jury and separate trials under s 597B.

[37]

[14] The joint trial of T and S was, however, appropriate in the present case so that the jury could fully appreciate their relationship with each other and with the complainant and the closely interconnected roles of T and S in the alleged offences. The evidence against T on the complainant's evidence alone, even without the evidence in S's case, was damning of T's character and her behaviour as a mother to the complainant. The complainant's evidence was already supported in the prosecution case by copies of photographs taken by T of S and the then teenage complainant having sex (ex 2). S's evidence merely provided greater detail of the complainant's account of T's bizarre behaviour. It did not require the discharge of the jury in T's case and no miscarriage of justice has occurred because of their joint trial.

[38]

[15] T contends that the directions, given by the primary judge in her case about her letters, cards and photographs tendered in S's case, were flawed. T emphasises the judge's direction, given four times to the jury, that the jury ought not to rely on evidence given by S of out of court statements made by T unless "... satisfied that the statement was made and the contents were true"; this direction was inapplicable and likely to confuse the jury to the prejudice of T. T contends that the trial judge should have acceded to the request of T's trial counsel and directed the jury to scrutinise carefully S's evidence implicating T where it was not supported by other evidence: Webb v The Queen.[8]

[39]

[16] Since Webb, s 632 Criminal Code has been amended so that a judge is no longer required to warn a Queensland jury that it is unsafe to convict an accused person on the uncorroborated testimony of an accomplice. Even when such a warning was ordinarily required by Queensland law, it was not necessary in all cases to so warn a jury: R v Tooma.[9] The difficulty in giving the warning now sought by T is that it would tend to undermine the presumption of innocence in respect of the co-accused and possible accomplice (S), who gave and tendered evidence: cf Robinson v The Queen.[10] A trial judge who decides to give such warning has the difficult task of attempting to ensure the necessarily complex directions are comprehensible to the jury and that balance and fairness are maintained in respect of all co-accused.

[40]

[17] In the present case, the judge gave the jury the following directions. S's evidence did not mean he took on any onus or burden of proving anything, the jury must decide what evidence they accept as reliable and ask whether on that evidence the prosecution has proved every element of the offence charged beyond reasonable doubt. His Honour then added:

[41]

"Now, I said to you that an out of Court statement by an accused in the absence of the other accused cannot be used adverse to such accused making the out of Court statement unless you say the statements were made and the contents were true. The complainant gave evidence of out of Court statements made by both accused and you will follow that test there, that what she says one accused said in the absence of the other is not admissible against the other. [S] gave evidence of out of Court statements made by the mother and you will not act on those adverse to the mother unless you are satisfied that the statement was made and the contents were true.

A different matter is that [S] gave evidence before you and such sworn evidence is evidence in the case. His sworn evidence is evidence admissible not only in his case but in the case of the mother, and his sworn evidence is admissible for and against the mother. If, in relation to any accused on any count, you are in doubt as to where the truth lies, you are duty-bound to acquit such accused on such charge because the Crown will not have proved every necessary element of such offence against such accused charged beyond a reasonable doubt."

[42]

[18] Because of the ten year delay in the making of the complaint, the judge warned the jury, consistent with the High Court's approach in Longman v The Queen,[11] that they must scrutinise the complainant's evidence with real care and caution, bearing in mind that it was dangerous to convict on her evidence alone because of the delay. His Honour repeated this at the commencement of the tenth day of the trial, the final day of his jury directions.

[43]

[19] His Honour separated the evidence insofar as it differed in the cases against T and S and summarised their respective cases for the jury. At the commencement of his summation of T's case he again reminded the jury that:

[44]

"... any out of Court statements said to have occurred with one accused in the absence of the other, is admissible in the case for and against that accused only, but not admissible in the case of the other.

[S's] evidence is evidence in the case. He gave evidence of out of Court statements with the mother. You do not act on any conversation with the mother, either with [S] on his evidence or the complainant on her evidence, you do not act on out of Court statement adverse to her unless you are satisfied that the statement was made and that the contents are true.

When letters such as Exhibits 26 and 27 are written, the statements are clearly made - you also have to be satisfied that the contents are true before you act on them adversely to the mother."

[45]

[20] On two further occasions when summarising S's case for the jury, the judge referred to evidence from S which could not be used adverse to the mother unless the jury found the statements were made and the contents true.

[46]

[21] In summarising T's case for the jury, his Honour noted that T's counsel had submitted that S would have obvious animosity towards the mother and that they should be very careful before using any of his evidence adverse to the mother.

[47]

[22] His Honour was not required in this case to warn the jury that they should not use S's testimony or the exhibits tendered in his case against T unless the evidence was supported by independent evidence: s 632 Criminal Code. Indeed s 632, whilst recognising that judicial guidance may be necessary in some cases, ordinarily discourages such a direction. Had the direction been given, it may have undermined the presumption of innocence in S's case. It may also have undermined in some respects T's position as T relied on much of S's evidence in her case, namely that count 1 did not occur and that count 3 was consensual. Nor would it have assisted T in respect of the exhibits tendered in S's case. Importantly, T did not contend that the photographs said to be taken by her or the letters and cards said to be written by her, tendered in S's case, were forgeries. The jury were entitled to act on the evidence (testimony and exhibits) in S's case as it related to T if they were satisfied that evidence was reliable. The judge's directions adequately explained this to the jury. In summarising T's case for the jury, the judge reminded them of the submission made by T's counsel that S's animosity to her was patent and to exercise caution before using S's evidence against her. The judge's directions rightly encouraged the jury to focus on the reliability or otherwise of the complainant's evidence, which he told them to scrutinise with real care and caution because of the delay in the bringing of the complaint. The judge, in this aspect of his directions, achieved an appropriate balance between the competing interests of S and T.

[48]

[23] T additionally complains about the judge's directions questioning whether ex 26 (the card and letter of 4 June 1994 in which T stated she was looking forward to the complainant having S's child) was "... part of the charade that perhaps the mother was undertaking, telling the complainant one thing and telling [S] another thing?" The judge made these comments when summarising the submissions of S's counsel at trial. In that context, no objection can fairly be taken to them.

[49]

[24] As to ex 27 (the card and letter of 5 July 1994 in which T likened a copy of a painting of naked women on the card to the complainant and her and fantasised about possible sexual relations between the three of them), T submits that the judge's directions that "... the mother is bizarre indeed, very active sexually and in versatile ways and that she was the one that set the scene so to speak for count 1, ..." was unfair and prejudicial. The judge made those observations in summarising the submissions made by S's counsel. It is not submitted this was an inaccurate summary of the submission. In that context the direction and the subsequent redirections were unobjectionable. T also complains about the judge's comments about the prosecutor's submissions on ex 27, that it was in effect "... giving the script to what in fact happened sexual gratification in exhibit 14" (a photograph of the complainant and S having sexual intercourse). That observation and the subsequent relevant redirection were also an accurate summation of the prosecution's unobjectionable contention. It was not improper for the judge to repeat this to the jury in summarising the prosecution case.

[50]

[25] In the circumstances of the present case, T's contentions (that ex 26 and ex 27 should have been excluded, that the judge's direction on ex 26 and ex 27 were flawed, that the judge should have discharged the jury in T's trial under s 597B Criminal Code, and that the judge's directions on how to use in T's case the evidence given and tendered by S were flawed) are all without substance.

[51]

The role of the complainant's husband as support person

[52]

[26] T contends that it was irregular for the complainant to have her husband as her support person and this compromised the fairness of the trial process. I agree with Jerrard JA's reasons for rejecting this ground of appeal, also relied on by S. I add the following observations.

[53]

[27] When the complainant gave evidence, the judge, in the absence of the jury, ordered that everyone leave the courtroom other than counsel and those instructing, a support person and all whose presence was necessary or desirable for the proper conduct of the trial. The complainant had earlier asked through the prosecutor that her husband be present as her support person. T's counsel expressed his reservation about her husband being the support person because in her statement she had said that she had spoken to her husband about matters before the court and they were involved in the church where she had received counselling. T's counsel was concerned that she may "turn to" her husband. The judge stated that his practice was to have the support person seated in a position where the witness could not look at the support person. T's counsel stated that if that was the judge's practice then he had no objection.

[54]

[28] Under s 5(1)(h) Criminal Law (Sexual Offences) Act 1978 (Qld), a judge need not exclude from a room in which a relevant complainant is giving evidence at trial:

[55]

"(h) any person who makes application to the court to be present and whose presence, in the court's opinion -

[56]

(i) would serve a proper interest of the applicant; and

(ii) would not be prejudicial to the interests of the complainant."

[57]

[29] The discretion given to a judge under s 5(1)(h) is wide and unfettered, subject to its exercise in the proper interest of the applicant; that it is not exercised in a way prejudicial to the interests of the complainant; and that it is exercised in a way which balances these interests with the public interest and the interest of the accused in ensuring that the trial is conducted fairly.

[58]

[30] There may be cases where a prosecutor would be circumspect in applying to the court under s 5(1)(h) for the partner of a complainant in a sexual offence to be present. There could be the potential to weaken the complainant's credibility by a defence contention that the complainant may have given evidence minimising the complainant's role and exaggerating the role of the accused because of the partner's presence. Such a contention could be made even where the complainant could not see the support person when giving evidence. Neither T's nor S's counsel made that submission here. The judge's exercise of discretion to allow the complainant's husband to take the role of support person, sitting behind the complainant as she gave evidence, satisfied the requirements of s 5(1)(h) and was an unexceptional and proper exercise of the discretion there given.

[59]

[31] T's counsel did not seek a judicial jury direction that the husband's presence sitting near the complainant was routine and gave rise to no inference in favour of the witness or against the accused. Such a direction is not required under the Criminal Law (Sexual Offences) Act: cf s 21A(2) Evidence Act 1977 (Qld). Had the direction been given, it could well have highlighted rather than minimised the impact on the jury of the husband's presence during the complainant's evidence and their close relationship which could be inferred from it.

[60]

[32] The judge's comments, that "she was seemingly happily married to her husband and she received the gift of two children" and "it seems as if her husband knows warts and all of what happened. You observed him sitting in Court as the support person behind her during her days in the witness box before you", were gratuitous and unnecessary. The judge corrected in redirections any possible overstatement of those facts. The judge's comments did no more than state what must have been an obvious inference open to the jury on the evidence. The judge on more than one occasion told the jury that the evidence was for them to determine and they must not be concerned by his view of it. In the circumstances here, the judge's directions on this issue did not amount to a misdirection resulting in a miscarriage of justice. These grounds of appeal also fail.

[61]

[33] Like S, T contends that the judge's directions to the jury lacked balance because the judge unnecessarily repeated evidence inculpating her even when ostensibly summarising the defence cases.

[62]

[34] The evidence was heard over the first five days of this 11 day trial. Counsel's addresses were completed at the end of the seventh day. The judge commenced his directions to the jury early on the eighth day, and continued until 4.30 pm when the court was adjourned until the next morning. On the ninth day, a Friday, after hearing medical evidence, his Honour was satisfied that T was too unwell to continue her trial and that the interests of justice required that, consistent with her medical needs, she have bed rest. The trial was then adjourned until 10 am the following Monday. This adjournment was unfortunate but entirely appropriate in the circumstances. On Monday, the tenth day of the trial, the judge continued his summing-up. The jury retired to consider their verdict at 11.54 am, heard redirections from 3.26 pm and again retired to consider their verdict at 3.55 pm. The complaints raised by counsel for T and S in applications for redirections were largely met by the judge's extensive redirections referred to in Jerrard JA's reasons. The jury returned with their verdicts at 2.57 pm the following day (day 11).

[63]

[35] T is critical of his Honour's repetition to the jury of substantial portions of the complainant's evidence when referring to the defence case. His Honour explained to the jury that he was doing this because defence counsel had referred in detail to the complainant's evidence in making submissions critical of it. It was by this time many days since the jury had heard the evidence and it was appropriate for the judge to remind them of the complainant's evidence in this context. Importantly, the judge on a number of occasions told the jury that the facts and evidence were, regardless of his view, a question for them and them alone. The judge's summing-up was lengthy and at times discursive and rambling. Although it could have been much more succinct and focussed, it fundamentally met with the requirements of a trial judge in giving juries proper instructions: RPS v The Queen [12] When the judge's directions are considered together with the redirections, as they must be, I am unpersuaded that the directions lacked balance in respect of the appellant, T. This ground of appeal also fails.

[64]

Was the complainant's evidence that T taught her to masturbate admissible?

[65]

[36] The complainant gave evidence that major surgery as a child prevented her from participating in teenage sports because of the effect of scar tissue. Her mother, T, told her that she was an angry child. When she was about 15, T suggested that, as the complainant did not have sport to release her frustrations and anger, she should masturbate to relax her body. T explained that she found masturbation helpful to release stress. The complainant said she did not want to learn, she felt it was wrong and disgusting but T continued to show her. The demonstration took place in T's bedroom. T had prepared for bed and was naked under the covers. She pulled back the covers, explained to the complainant what the clitoris was, where it was positioned on T's body and showed the complainant how T rubbed it. The complainant became upset and said she did not want to see any of this. T then showed her an alternative method. T rolled on her stomach and explained that she found the most satisfying method was to rub the thumb along the clitoris and enter the fingers into the vagina so as to get deep penetration. The complainant thanked her and told her that she did not want to talk about it.

[66]

[37] No objection was taken to the admission of this evidence at trial. The incident was said to have occurred when the complainant was 15 and so was between the time when count 1 occurred and the time when counts 2 and 3 occurred.

[67]

[38] The primary judge gave the following relevant directions to the jury:

[68]

"In relation to counts 2 and 3 there was some background evidence led which I will be referring to of the mother on the complainant's evidence teaching her to masturbate, and of the complainant in [S's] presence having her pubic hair shaved. That evidence is led for the limited purpose of - in relation to counts 2 and 3 being for the sexual gratification of the accused as part of the corrupting of the complainant. That is the very very limited use you may make of it. It is there to give the nature of the relationship between the parties in relation to the complainant and the accused in relation to matters sexual and you can only use it for that limited purpose. And equally if you have doubts in relation to either of those acts occurring you will bear those doubts in mind in evaluating the credibility or reliability of the complainant in relation to an individual charge against the accused."

[69]

[39] The evidence was capable of being used to demonstrate that the complainant and T had an unusual mother/daughter relationship as to sexual matters and that this was evidence of T arousing the complainant's sexuality so that ultimately T could engineer the complainant to have sexual intercourse with S, even without the complainant's free consent. The jury were made well aware that they were they sole judges of the evidence. Had they considered this was evidence of an unexceptional sex-education discussion in the context of a healthy mother-daughter relationship, they would not have used it as evidence of an unhealthy relationship of corruption, grooming or sexual dominance by T of her daughter. The evidence was admissible and the judge's directions in respect of it were adequate. The judge gave the additional direction favourable to T, that if the jury had doubts about the truthfulness of this evidence, they should consider those doubts when assessing the complainant's evidence of the charges. This ground of appeal also fails.

[70]

[40] It follows that T's appeal against conviction should be dismissed.

[71]

In T's appeal against conviction (CA No 289 of 2006) the appeal is dismissed.

[72]

In S's appeal against conviction (CA No 295 of 2006) the appeal is dismissed.

[73]

[41] JERRARD JA: On 12 September 2006 the female and male appellants were each convicted of one count of having unlawfully and indecently dealt with a child under the age of 16 years, and two counts of rape of that same complainant. On 13 September 2006 both were sentenced to seven years imprisonment for each of the two offences of rape, and 18 months imprisonment on the offence of indecently dealing, all sentences to be served concurrently. Both have appealed against the convictions. I agree with the President that T's appeal against her conviction should be dismissed; these reasons concentrate on S's appeal.

[74]

[42] The appellant T's grounds of appeal complain that the learned trial judge did not give the jury appropriate directions about the use of photographs and documents tendered by the appellant S in evidence in his case. She also complains that the complainant's husband had the role of support person during the trial, sitting behind the complainant as she gave evidence, and his identity was highlighted by the learned trial judge in the summing up. She also contends that the summing up lacked balance because the trial judge unnecessarily repeated evidence against her, even when ostensibly summarising the defence case; and that there was a miscarriage of justice because of admission of irrelevant evidence of the appellant's sexual conduct, namely that she had demonstrated masturbation to the complainant, her daughter.

[75]

[43] In S's appeal, he contends that the learned trial judge used inflammatory language in the summing up and presented the case to the jury as an advocate for the prosecution. His counsel contends that redirections given to the jury, dealing with complaints of advocacy by the judge, could not redress the unfairness and imbalance that had been caused; and that the summing up otherwise contained propositions unsupported by the evidence and not advanced by the Crown. He also submits that the directions given were capable of leaving the jury with the impression that the task was to determine whether they accepted the evidence given by the complainant or that given by the appellant S, itself a misdirection; and argued the learned judge failed to direct the jury clearly that if they could not determine where the truth lay, S was entitled to the benefit of the doubt.

[76]

[44] S was 69 when sentenced and T was 51. His evidence was that they met in 1987, apparently when serving in the army reserve. He was married and living with his wife and family in Ingleburn (Sydney), and an affair began. In 1988 T moved with her two children (the complainant, and the complainant's younger brother) to live in Ingleburn, and the complainant, who was born on 7 December 1977, met S when she was 10. T and her children stayed living at Ingleburn until, apparently, late 1993. She then moved to a residence in Cranbrook, in Townsville.

[77]

[45] Count 1, alleging an offence of unlawful and indecent dealing with a child under the age of 16, was said to have happened between 1 November 1991 and 1 February 1992, during the New South Wales school holidays. The complaint's evidence of that offence was that she, her brother, and her mother (the appellant T) had gone on a holiday with S to North Queensland, principally to work on a fence line on a property S had bought in the Townsville area. During that holiday they also travelled to Cairns, onto Cooktown and back to Cairns. The complainant's evidence was that count 1 occurred on the first visit to Cairns, when staying in a small cabin containing a double bed and a double bunk bed, separated by a curtain.

[78]

[46] Her evidence-in-chief was that T was a very strict and domineering parent, who would slap, punch, and strangle the complainant to enforce discipline, and that:

[79]

"I was threatened that should I not agree with the living standards in the home I was to be taken to Kings Cross in - in New South Wales - and I would be left there."[13]

[80]

She added that she was actually very quiet, very withdrawn, and almost reclusive in her early teenage years, and was:

[81]

"Extremely compliant. Living in fear a lot of the time and not knowing - to be honest not knowing any human rights that I had."[14]

[82]

She added that she was born with bowel deformities which required surgical intervention (S gave evidence that he understood the complainant was born without an anus, which was surgically constructed), and accordingly was not allowed to participate in many sports because of danger with scar tissue.

[83]

"Always commenting that I was always angry and asked where this anger was coming from."[15];

[84]

and that her mother had suggested the complainant learn to masturbate, when the latter was about 15. She said T told her that masturbation helped T to relax and it relieved a lot of stress; and over the complainant's objections, her mother had demonstrated to the complainant where her mother's clitoris was, and showed her techniques for masturbation. The admission of that evidence is one of T's grounds of appeal. In that same passage the complainant described how her mother and S had requested that the complainant's pubic hair be shaved, which T did, and which caused rashes to the complainant. S was present and watched.

[85]

[48] The complainant then described the commission of count 1. The complainant's evidence was that at lunch time of the day of the offence, her mother had told her that S wanted to teach her what sex was supposed to be like. The complainant's evidence was that she objected to that, and her mother said that the decision was made, and that there was no choice. That night the complainant went to bed early, simulating sleep, but her mother shook her awake vigorously, and told her to come over to the bed with her mother and S. She did that, because:

[86]

"I knew that, you know, she wasn't taking 'No' for an answer."[16]

[87]

S was lying on the bed, behind the curtain, naked. Following an instruction from her mother, the complainant removed her nightie (with her mother's assistance), and removed her pants. She lay on the bed looking at the ceiling and crying, and her mother fellated S. He then put his right hand between the complainant's legs, and inserted either two or three of his fingers into her vagina.

[88]

[49] He moved his fingers around, and she asked "them" to stop, saying "it hurts", and her evidence was that:

[89]

"To this day, out of everything, that day was most - is most prominent in my memory. I remember the feeling of like a - a hang nail. I remember the feeling of the - the scratching and - I cried very hard."

[90]

"Shut up, you little bitch. Just be quiet."[17];

[91]

and her mother continued fellating S. He "snickered and laughed"; he thought it was quite hilarious, in the complainant's opinion. The incident ended when her younger brother woke up screaming and her mother went to him. It transpired that he had an ear ache or infection; her mother returned and said to the complainant:

[92]

"That'll be typical of you, you little slut, just lying there. You're enjoying it. Your brother's in pain. He's screaming his head off and - you're lying there not caring about your brother."

[93]

[51] If the jury accepted the complainant's account of that event, both appellants were guilty. T did not give evidence at the trial, but her counsel put to the complainant that no sexual act had occurred on that occasion. S did give evidence, and he denied that any such incident happened. In cross-examination, his counsel had showed the complainant a photograph of a motel room that did not match her description of the one in which the offence occurred; but her evidence was that she thought that was the room in which they stayed on the way back from Cooktown. She resolutely maintained that the incident did happen.

[94]

[52] Count 2, the first count of rape, was described by the complainant as happening in her mother's house in Townsville. On the evidence heard by the jury, it was the next act of a sexual nature occurring between the complainant and S. However, the information placed before the learned judge (a different judge) who had ruled on 21 August 2006 on T's application under s 597B of the Criminal Code Act 1995 (Qld) for an order for a separate trial, was different. That learned judge was informed that it was part of the complainant's account that after the offence in count 1 was committed, and when the parties had returned to New South Wales, there were numerous occasions when sexual intercourse either took place between S and the complainant, or was attempted by S. That judge was told that the prosecution case would be that S suffered from a medical condition which made it difficult for him to sustain an erection, and that on occasions in New South Wales, her mother (who was present in the bed) had directed the complainant to assist S in attempting to obtain an erection. S would then attempt intercourse (in New South Wales) with the complainant.

[95]

[53] The indictment presented against the appellants in Queensland did not, of course, include any of the offences allegedly committed in New South Wales. However, the judge hearing the application for separate trials was told that the Crown proposed to lead that evidence, as evidence of the relationship between the complainant, her mother, and S. It would be led to make explicable the behaviour of the complainant in respect of the two counts of rape in Queensland. That learned judge was also told that S had admitted to the investigating police that he had a sexual relationship with the complainant in New South Wales, although his account of that differed from the complainant. But, as it happened, none of that evidence was led in the trial in Queensland. The learned judge before whom the trial was conducted excluded evidence of any uncharged acts,[18] and the Crown elected not to lead evidence of the interview between S and the police, containing admissions of offences committed against the (under age) complainant in New South Wales, and his admissions of what he contended was consensual intercourse in Queensland.[19]

[96]

[54] Following further submissions, the learned trial judge who conducted the trial excluded evidence of the events in New South Wales, primarily because of the submission made by counsel for S. His counsel pointed out that the complainant contended that she had objected on each occasion to any abuse committed on her in New South Wales. Accordingly, that evidence did not disclose a submissive or overborne relationship. The learned judge was persuaded to simplify the task of the jury in Queensland, and acceded to counsel's submission. The result was that the jury heard only of sexual conduct occurring in Queensland, between the complainant and the appellants.

[97]

[55] The evidence not led included S's admissions to the police that T intended, and S had agreed with her, that he would make the complainant pregnant because T was getting too old to have his child. S advanced that same defence on oath in his trial, regarding the two counts of rape in Queensland, and was accordingly perhaps equally advantaged and disadvantaged by the exclusion of all evidence of sexual dealings between himself and the complainant in New South Wales, and his explanation of those, consistent with his defence of consensual intercourse in Queensland.

[98]

[56] The complainant's description of count 2 was that in 1994, toward the last week of school before Easter, when she was in grade 11, her mother had said:

[99]

"I want you to stay home from school today."[20];

[100]

and that her mother had then explained that S would be coming around that morning, and:

[101]

"He's supposed to be buying me an engagement ring and wants you to help him pick it out."

[102]

"She said, he will be - be expecting something. And she raised her eye - eyebrows and she looked at me. My brother was sitting next to me watching television. And that was the signal. I knew exactly what she was referring to. She said for my sake be a good girl. Do whatever it is he asks you to do. He - he promised me that he'd buy me - buy me a ring and for - for my sake and - and for the family's, you know, we'll be - he - you know, he - he's financially secure. So for my sake just do as you're told."[21]

[103]

[57] The complainant's evidence was that although she did want to go to school in Townsville that morning, she stayed behind, because:

[104]

"I'd been brought up believing there was no - I had no choice. I never, ever had - had choice to think of myself as a single entity. I had no human rights. I thought I was going to - if I did go to school I would come - would not have a home to come to. I did not - did not think that I was - it was a safe decision to make for me to still got to school."

[105]

[58] That was the full extent of the evidence demonstrating participation by T in what followed. It was certainly a description of T procuring an act of prostitution by her daughter, who was then 16; it was not necessarily a description of T's securing or organising an offence of rape upon her daughter, who did not describe making any objection at all to her mother about the request to entertain S.

[106]

[59] The complainant's evidence was that her brother left for school, and her mother left for work, and that S arrived shortly after her brother had left, and knocked on the door. The complainant let him in, because she was doing as she had been told to, and she offered him a cup of coffee. S bought two items from a person who was door knocking and selling goods, and then S suggested that the complainant should "be a good girl", go to her mother's bedroom, take off her clothes, and lie down for S. The complainant did that, although she did not want to, and she did it because she thought she would be:

[107]

"Kicked out of home. I'd be homeless. I was also terrified of - of being found by my mother, being beaten. To be honest I was so scared that any logical thought just surpassed - you know, there was - there was just no choice."[22]

[108]

[60] Her evidence continued that S came into the bedroom and removed his clothes, and that she then said to him:

[109]

"I'm not a prostitute. I don't want to be doing this. I'm just letting you know I'm - I don't want to do this. This is wrong."

[110]

S, in response, chuckled and said "I know", and began to have intercourse with her. During it the complainant cried because she felt extremely violated and very unsafe, and she said:

[111]

"This is wrong. You should be having sex with my mother, not me.";

[112]

[61] After the act was completed both dressed, and she then went and assisted S in buying what he insisted was only a present for Easter for her mother, not an engagement ring. What he bought was a blouse, which she gave her mother that night. Her mother reproached her for the fact that a ring had not been obtained, saying:

[113]

"Well, you obviously didn't do - do it right then because he wasn't happy and I didn't get my ring, thank you very much."

[114]

Her mother also verbally abused her in other ways on that evening.

[115]

[62] On the complainant's account that act of intercourse was undoubtedly an act of rape, a matter that was made clear to S. It would only be an act of rape procured by T if the latter knew that the complainant's submission without protest was due to terror of her mother's anticipated response to any opposition. As to that, there was absolutely no cross-examination at all of the complainant by counsel for T in which there was any challenge to the complainant's description of the fear she had of her mother, or her mother's methods and style of disciplining the complainant. There was no challenge in cross-examination to the complainant's description of fear of being ejected from the home or of being beaten, and no suggestion that the complainant did not reasonably have such fears. Absent such challenge, the jury had no reason to reject or disbelieve the complainant's description of submission through fear, and did have a basis for concluding the mother understood exactly why the daughter was submitting.

[116]

[63] The matters put in cross-examination on T's behalf included that the complainant had told the police that she (T) had told the complainant that S was coming "tomorrow", not that very day; and that T simply did not learn of that act of sexual intercourse until some two years after it occurred. The complainant responded to that suggestion by insisting that her mother did know about the intercourse, and that:

[117]

"She had requested for it to - and set up for it to be done."[23]

[118]

[64] S's defence, as put in the complainant's cross-examination, did implicate T in procuring the act of intercourse which was count 2. The complainant agreed with the suggestions put by his counsel, in cross-examination, that T had been totally obsessed with S, and had thought that if there was a child fathered by S in the mother's family, S would come and live with the mother and her family. She agreed that T had discussed with her whether she would have a baby for T (apparently, S's baby); that discussion was held when the complainant was 15, and living in New South Wales. She also said that her mother had gone to live in Townsville because her mother hoped that S, who was married and living with his wife in Sydney, would leave his wife and go and live with T in Townsville; T thought there would be more chance of that happening if S had a child. However, the complainant denied that the sexual intercourse with S in Townsville had occurred for the purpose of her becoming pregnant to him and having a baby for her mother; she said that she had always understood that she could die in child birth (apparently because of her defects at birth).[24]

[119]

[65] That denial meant she rejected the reason for the intercourse put forward by S, but her answers acknowledged that her mother considered the latter had a reason, apparently quite sufficient for her mother, for wanting her then 15 year old daughter to become pregnant to S. The complainant's other answers agreed with suggestions that when the parties lived in Sydney, the mother would collect S from his home (where he lived with his wife and children), and take him to his train; and then call at the station later to collect him. She would become frantic if S was not on the train, and would make the complainant and her brother ring hotels and clubs to locate S. She agreed that T had wanted S to leave his wife, and often said that; and that her mother had gotten a tattoo placed on her stomach of what she thought was S's family crest. When S gave her mother a ring of some sort in New South Wales, T had said it was an engagement ring. The complainant later repeated in that cross-examination that her mother had arranged for the intercourse in Townsville to happen, and had indicated that she expected that sexual intercourse with S would happen, and had told the complainant to "go along with it", the mother's motive being to have a relationship with S. The complainant expressly denied that the intercourse happening with S that day had only commenced when she, the complainant, had said:

[120]

and swore that she did tell S that she did not want to have intercourse with him, and did protest.

[121]

[66] Other cross-examination established that T had finally fallen pregnant herself to S, apparently in 1999, and evidence not led before the jury, but given on a voir dire, explained that the complainant had not approached the police with the complaint that she did make in 2004; instead, because the two appellants were apparently engaged in conflict over S's contact with their small daughter, T had made a complaint to police about S's dealings with the complainant, when the complainant was under 16 and in New South Wales. That complaint had led police to the complainant, and ultimately to the trial. The jury learnt only that the police had gone to the complainant, after speaking with T.

[122]

[67] The complainant's account of count 3 was that it occurred on a 50 acre property S owned at Purono Park, via Townsville. A small shed stood on the property, which was lightly timbered. On her evidence the offence happened in mid 1995, when she had sexual intercourse against her will, on that property with S, and her mother took photographs of the event. She described being driven to the property by her mother, and being unable to recall if S had travelled there in the same vehicle.

[123]

[68] The complainant said T told her that S wanted to:

[124]

"Have sex with me for one last time."[25]

[125]

T told the complainant that she intended to record it for S, and that it would be the last time something like that would happen. When they arrived at the property the complainant was told to remove her clothes, and she said that:

[126]

"I do not want to do this. I'm not partaking in this of my will. Just wanted you to know.";

[127]

apparently speaking to both her mother and S. She swore her mother's response was to say:

[128]

"Just do as you're told, lie down on the blankets.";

[129]

and both the complainant and S undressed themselves. Intercourse then happened; the complainant said that she was not in a position:

[130]

"Where I could escape anywhere. I did not yet know how to drive, especially a four-wheel drive. I did not how to escape. I had no - to me I had no choice. There - there was - they were - they were two bodies of authority which I felt I had no say against or - or there was - there was - no way I could - could put up a fight against them."[26]

[131]

[69] She also swore that during the intercourse, she had said:

[132]

"I don't like this. I'm sick of being your prostitute Mum.";

[133]

and had cried. She said S "snickered" when she cried, and that her mother, who was taking photographs, told her to:

[134]

"At least look like you're enjoying this."[27]

[135]

The complainant did as she was told, including raising her legs, and her mother took photos. One of those, on the complainant's evidence, was a close up of S's seminal fluid coming from the complainant's vulva. Afterwards, when all parties were dressed, more photos were taken.

[136]

[70] The prosecution tendered photographs of the complainant and S having intercourse at that property, and it was common ground that T had taken them. They confirmed the commission of the act of intercourse which was count 3, and the mother's presence as the photographer. The complainant does not appear visibly distressed in those photographs, but her evidence was that she had been instructed to appear to be enjoying it. T's counsel suggested only in cross-examination that the complainant had been a willing participant, which the complainant denied. More emerged in cross-examination by S's counsel; that included that T had on some earlier occasion engraved the tree under which the intercourse occurred, with the following words:

[137]

"[S] and [T], our eternal life, enduring love of my own flesh and blood forever more as one."[28]

[138]

[71] That engraving, which was before the jury in a photograph, reinforced the evidence of the complainant's agreement in cross-examination that her mother was obsessed with S. It was dated 1994, and the complainant agreed count 3 happened then, not in 1995. She also agreed in cross-examination that there had been some foreplay before the intercourse commenced, and a photograph was tendered during cross-examination, which became exhibit 14. It showed S kissing or about to kiss one of her breasts, and apparently touching her groin. The complainant agreed that S had not ever said anything threatening to the complainant, but she insisted that she had protested (to him) as each sexual act occurred, and that she had cried. She added that her mother had told her to go along with "it", before they went to Purono Park.

[139]

[72] Other evidence, not particularly relevant to S's defence but adduced during cross-examination of the complainant on his behalf, included that T had previously taken photographs of the complainant when she was about 15, and naked. Some of those were exhibited during that cross-examination. The cross-examination revealed S's defence was that no objections or protests were made to him about intercourse, and that he believed that he was impregnating the complainant.

[140]

[73] The complainant was really the only witness in the prosecution case. Some very short evidence was called from the arresting officer, to the effect that it was that officer who had approached the complainant, after speaking with T. The only other witness was S. His evidence was that after he had met T in 1987, and she had moved to Ingleburn, she had become possessive during the affair they had, and wanted him to leave his wife. He denied that the events in count 1 had happened as alleged, but agreed the holiday trip north had occurred. He swore he could recall only seeing T be violent to the complainant on one occasion, when she had slapped the complainant across the back of the shoulders. He said T had spoken of the possibility of having a child with him, but feared she may be unable to, and that he had been concerned at the 20 year difference at their ages; she had said that she would ask (the complainant) to have a baby for her. He had responded:

[141]

That was the end of the conversation. Later, before T left Sydney to live in Townsville, she had told him that she had spoken to the complainant, who had agreed to have a child for T, and that T would look after the child while the complainant completed her university studies and graduated.

[142]

[74] The next relevant step was that he was contacted by the complainant from Townsville, and told the "time is right", so he travelled up there. It took two days to drive, and he stayed at his property at Townsville. On a date arranged by T, he went to her Townsville residence, and met the complainant there. The latter greeted him with the words:

[143]

("Boof" was his nickname) and they had a cup of coffee. Then the complainant said:

[144]

and they did. Intercourse happened; the complainant made no objection of any kind. After it was finished, and when she had dressed, she said:

[145]

a saying S had not heard for many years.[30]

[146]

They then went shopping, and she told him that her mother wanted a diamond ring, and he explained he was not buying one.

[147]

[75] His evidence regarding count 3 was that he had returned to Townsville in August of 1994, and he could recall having intercourse with the complainant at Purono Park on 4 September 1994, that date being his birthday. T had arranged the event, because:

[148]

"When I arrived up here in August there were the discussions of (the complainant) having a child still."[31]

[149]

He described how T had been to his property and selected the tree, and told him that "the cycle was right", apparently referring the complainant's menstrual cycle.[32]

[150]

[76] He described the three people being driven there by T, and he and the complainant removed their clothes when they arrived, with some foreplay occurring prior to the intercourse. After it was completed he asked the complainant if she was "all right", and she said "yes". He agreed with the learned trial judge that those were the first words the complainant had spoken after they arrived at the scene; and indeed, on his evidence, from when she had gotten in the car. Other evidence-in-chief from him included that prior to Christmas 1994 he had returned to Sydney, because he had had enough "about this pregnancy", and that other conversations he had with T revealed that she said her father had sexually abused her, and was:

[151]

[77] He also gave evidence of having attended, by invitation, the complainant's 21st birthday party, and celebration of her graduation at university. In cross-examination, he agreed that he had no relationship with the complainant at all, and that he would be equally unable to contribute to the care of a child he fathered with the complainant, as he would with one he fathered with T. He had not asked the complainant on either occasion when he had intercourse with her if she really wanted to get pregnant, and had relied entirely on what he said T had told him. He denied the suggestion put in cross-examination that intercourse with the complainant was for the purposes of his own or T's sexual gratification, and denied that he had known during the act of intercourse that constituted count 3 that T was taking photographs.

[152]

[78] The Crown Prosecutor challenged that denial, and pressed with questions as to when S first saw those photographs, which S said was when he was on his way back to Sydney. He said in further answers in cross-examination, when further pressed, that he had kept the photographs - although they were disturbing - because he had been told by T of the possibility that the complainant might bring "charges" about the act of intercourse in count 2. He was quite clear at that stage of the cross-examination that he had been told after the event constituting count 2, and before the events constituting count 3, of the possibility of that complaint. Nevertheless, his evidence was that he had participated in count 3 without making any enquiries of the complainant; and for that reason had kept the photograph later given to him.

[153]

[79] In later cross-examination by T's counsel, he denied having been the party who organised for the photographs of count 3 to be taken, and then said that the threat of a complaint by the complainant had first been raised in 1995, not 1994. He also denied that it was he who suggested that the complainant be a surrogate parent for T, and rejected the suggestion that T had had no part in arranging the meeting of himself and the complainant which was count 2, or that it had not been her idea to go to his property for the purposes of the commission of the conduct charged in count 3. In re-examination, he repeated the evidence that he first learnt of a potential complaint in 1995; he said that he had decided to keep the photographs of the intercourse in count 3 in Christmas 1994.

[154]

[80] During his evidence-in-chief he had produced a letter (exhibit 26) and a card (exhibit 27) which T had sent him in 1994, between the dates when counts 2 and 3 occurred. There was no dispute that T had written those. Exhibit 26, dated 4 May 1994, included a statement by T that:

[155]

"I was looking forward to (the complainant) having your child too";

[156]

"You may be having sex with (your wife) but is it the same as I give you [S], head jobs, anals, in all the ways and places of touching possible..."

[157]

The first passage quoted contradicted the suggestion put by T's counsel in cross-examination, namely that T had been unaware until some date in 1996 that the intercourse constituting count 2 had happened. The way T expressed herself in exhibit 26 also supported S's defence that T had told him the complainant had agreed, at T's suggestion, to have his baby. The second passage quoted is relevant to a complaint made in S's appeal, about inflammatory comments by the judge.

[158]

[81] The second letter, exhibit 27, had a passage upon which the learned judge made comments to the jury and which formed a ground of appeal. The effect of the passage was that T was imagining S engaged in making love with both the complainant and herself at the same time, and that T's fantasies included S:

[159]

[82] The learned trial judge gave careful directions to the jury on the applicable law. The judge settled upon those directions after extensive submissions from counsel and discussion with counsel, in which the judge drew the attention of all counsel to a number of relevant case authorities. There is no complaint made on this appeal about those directions, which conveyed with clarity quite sophisticated concepts. Nor is there any complaint that the learned trial judge failed to remind the jury of the respective cases and arguments presented by the prosecution and defence. The learned judge did that in some detail. The complaint on this appeal is that the learned judge made comments, when summarising the argument for each party, and used terms, which were calculated to prejudice the jury against the appellants; and that what the judge said in those remarks was appropriate only to an advocate for the prosecution.

[160]

[83] It is well settled that a trial judge is entitled to make such comments on the evidence as the judge thinks proper, provided the judge makes it clear to the jury that the determination of the facts is for them, and that they are free to accept or reject any comments by the judge as they choose.[34] In RPS v R the joint judgment in the High Court recognised that a trial judge might make strong comments on the factual issues; although that joint judgment also emphasised the importance of a trial judge not allowing any obscuring of the division of functions between judge and jury. The joint judgment stressed that it is for the jury, and for the jury alone, to decide the facts. That joint judgment remarked that often, perhaps, much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel, and that the fundamental task of a trial judge was to ensure a fair trial of the person charged. At issue on this appeal is whether the comments by the judge were, in the terms used in R v Bolic and Judd, far stronger than the facts warranted; whether the judge made it clear that the jury were not bound by any views expressed by the judge, and whether there was a risk that the jury may have been overawed by views implied or expressed in the remarks by the judge.

[161]

[84] S's counsel had put in exhibit 14 (the photograph of foreplay before count 3 was committed) and exhibit 27 (the card from T), for the forensic purpose of suggesting that the photograph demonstrated consensual intercourse, and the card a reason why S might assume or accept or expect that T had obtained the complainant's consent to sexual acts with him, witnessed by her mother. However, counsel for the Crown submitted in his address that exhibit 27 perhaps conveyed instructions from T for future sexual activity between S and the complainant, for the gratification of the two appellants, and that exhibit 14 showed S following those instructions. He was biting the complainant's breast and feeling her "fanny" at the same time. That submission by the Crown led to a remark by the judge during the summing up, which is one of S's grounds of appeal.

[162]

[85] The argument the Crown advanced to the jury was that the intercourse had been for gratification and not for procreation, and that this was illustrated by the fact that there had not been more occasions of intercourse on either of the two trips by S to Townsville. Those submissions by the Crown assumed some necessary inconsistency between intercourse for pleasure and for procreation, an assumption probably contrary to most human experience. However, the submission was part of a legitimate attack on the evidence given by S, and during it the Crown Prosecutor described the admitted conduct of T and S as bizarre. S complains of the manner in which the learned trial judge took up that description.

[163]

[86] The learned judge, when referring to count 1, repeated the description by the Crown of the two appellants' conduct in count 3 as bizarre, and asked:

[164]

"Does it make easier to accept possibly the bizarre behaviour in count 1 could in fact occur?"[35]

[165]

That observation was made immediately after the learned judge had remarked that:

[166]

"What you do know, and I am trying to use neutral terms, as is obvious you have heard many days of indelicate matters being referred to, I had to refer to a number of indelicate matters, and it is obvious to you on quite a mountain of evidence that the two accused were sexually very active, and what is a neutral term, pretty versatile sexually."[36]

[167]

[87] That description of either or both appellants as sexually active and versatile was put more than once by the learned judge, including as part of the following suggestion. The judge had remarked it was obvious T was besotted with S and had wanted him to leave to his wife, and desperately wanted him for herself permanently. The judge then said:

[168]

"... might she do all sorts of extreme and unusual things in an attempt to achieve that end. What is the other side of the coin? Might she be so vulnerable that bearing in mind the sexually active and versatile relationship the two of them had, might he take advantage of her being besotted and make some pretty extreme demands of her? Would it be bizarre in the circumstances of this case if he were to take advantage of her being besotted - sorry, I am about to refer to the complainant's evidence on the topic - to take advantage of her being besotted and make sexual demands in relation to the complainant? You would approach that very very cautiously but I will refer you to the evidence thereon."[37]

[169]

[88] This Court was informed on the appeal that that last hypothesis - of demands about the complainant by S - had not been advanced by the prosecutor in his address, and came only from the judge. It was not put to S in cross-examination, although the complainant's account of count 1 did imply S had suggested that offence. Allied to the complaint about the comment is the further complaint that the judge made references to the contents of exhibit 27, in which the judge repeated the references to "extreme sexual behaviour" and to "versatile sexual activity"[38], and that the judge rephrased the submissions of counsel for the Crown when directing the jury, in these terms:

[170]

"In relation to exhibit 27 Crown Counsel submits - and if I may use a racing analogy - that in that letter the mother was giving [S], so to speak if I use the racing analogy, his riding instructions for future sexual activity for sexual gratification of [S] and the mother."

[171]

The learned judge referred again to the term "riding instructions" in the same context in a later passage in the directions, and more than once again to T being very active sexually and in versatile ways, and suggested that S may have found it:

[172]

"... somewhat exciting or perhaps a 'turn on' to have sexual intercourse with a 16 year old female, who in the photographs you might think to him it would appear an attractive 16 year old girl."[39]

[173]

[89] The complaint made about those comments was that judge had used inflammatory language, and the further complaint that while a number of the remarks had repeated the thrust of argument put by the Crown, other comments or observations came only from the judge. Counsel added to that complaint what were contended to be examples of the judge acting as an advocate for the Crown, including the remark by the judge (about count 3) that:

[174]

"In effect, it was coincidental that the most appropriate time in the cycle on the defence case was on [S's] birthday. It was the Crown's submission that it was for sexual gratification on his birthday as a present to him or whatever."[40]

[175]

In fact, the prosecutor had not made that submission, nor the suggestion that S had made extreme demands of T. The learned judge repeated the suggestion:

[176]

"Is it a bit of a coincidence, members of the jury, if it was to be the most promising period to conceive, the cycle, that happened to be on his birthday, or was it arranged for his birthday, whatever the stage of the cycle it might have been?"[41];

[177]

S had not been cross-examined about that suggestion. Counsel also complained that some of the remarks by the judge had not been supported by any evidence; for example, there was no evidence S found the complainant attractive, and no evidence from S as to his actual sexual relationship or activity with T. Her correspondence to him may, for example, have been entirely a fantasy by her.

[178]

[90] Counsel also complained that the learned judge also used inflammatory language not used by the Crown, when referring to the Crown submission on S's evidence that he was told of a possibility of a complaint in 1994 (between the occasions on which counts 2 and 3 were allegedly committed), and on his later evidence that he was only told of this in 1995, and to his attempts to explain why he had kept the photographs of himself having intercourse with the complainant. The learned judge said the Crown argument was that S had "somewhat shot himself in the foot", when giving evidence on that point in cross-examination. That expression was used more than once[42] by the learned judge, and never by the prosecutor. It was used when repeating the submission by the Crown Prosecutor to the effect that S had damaged his own case, when S was challenged as to why he kept photographs which he said were taken without his knowledge or consent.

[179]

[91] Counsel for S referred on this appeal to the well recognised obligations of a trial judge to act with manifest fairness in proceedings, and not to present a summing up to a jury which could be described as unfair, lacking judicial balance, and partaking in partiality (referring to the remarks of Gleeson CJ and Kirby P in R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 55-6). He also referred to the obligations of appellate courts to review the fairness, balance, and impartiality of a summing up, and directed this Court to the remarks of Barwick CJ, McTiernan and Owen JJ in Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, where their Honours referred to a trial judge who had presented his own view which was frequently, although not always, unfavourable to the accused. He also relied on the remarks of the Court of Criminal Appeal in R v Perera [1986] 1 Qd R 211 at 299, where that Court observed that a trial judge must not cause a jury to think that the judge is directing them to find the facts in any particular way. The court also referred to the fact that the jury is likely to pay great attention to views which a trial judge does convey.

[180]

[92] There was another complaint, in which S's counsel joined. This was that the learned trial judge had identified to the jury that the fact that the complainant's husband was acting as the support person to her when she was a witness. He sat in a chair a little behind, and beside, the witness box when she gave her evidence. The fact that the husband did so act had been established by an arrangement at the commencement of the trial, well understood by counsel and the learned judge. The arrangement was made under s 5(1) of the Criminal Law (Sexual Offences) Act 1978 (Qld), rather than under s 21A(2) of the Evidence Act 1977 (Qld). Because it was made under the former Act, there was no statutory obligation for the judge to remark on the presence of a person to "support" the witness, and the jury need not have been advised about it at all. However, during cross-examination of the complainant, S's counsel, when cross-examining about a photograph, extracted the complainant's agreement that one of the persons shown in the photographs was her husband (the photograph was taken on her 21st birthday). Later, in the course of the summing up, the learned judge referred to the circumstances in which the investigating police had to come speak with the complainant about the matter, and remarked:

[181]

"It seems as if her husband knows warts and all of what happened. You observed him sitting in Court as the support person behind her during her days in the witness box before you."

[182]

The learned judge had referred just a little earlier in the summing up to the complainant's "seemingly happily married" status.

[183]

[93] The complaint made is that that observation, identifying the support person as the complainant's husband, and conveying the assumption that he "knew" what had happened and was supporting the complainant, expressed by implication an inadmissible and irrelevant opinion of the husband in favour of the complainant, supporting her credibility. The comment the judge made does have that capacity, was unnecessary, and should not have been made. It added, to the judge's earlier comments critical of S, the assumed and inadmissible opinion of the complainant's husband in support of her credibility, and accordingly another impediment to the clear conclusion that this trial was fair.

[184]

[94] The prosecution received an advantage it should not have had from the various statements by the learned judge. The advantage was the attack on S's credibility and the support of the complainant's, derived respectively from the references to S's possible extreme demands on T, and to the complainant's support from her husband_._ There is merit in the complaints made on this appeal, particularly because the learned judge suggested a view about S as a sexual predator upon which he was not cross-examined and which had not been put by the Crown, namely that he had procured T to supply her daughter to him. He had no chance at all to reply to that suggestion, which made it unfair. As the judge actually recognised when making that comment, it was essentially speculation, and it was undoubtedly prejudicial to S. It was damaging to the credibility of his claim to have been acting on T's advice that the complainant had consented to falling pregnant to him. It reflected the dichotomy contended for by the prosecutor, between intercourse for pleasure and intercourse for procreation, whereas the fact is that whatever the purpose or object of S's intercourse with the complainant, if her description of it was accepted by the jury as correct, S raped her. She swore she had objected and made her objections very clear, and that he had expressly acknowledged them.

[185]

[95] But in the course of further directions, the learned judge - as requested by counsel for S - advised the jury:

[186]

• there was no evidence that S did find the complainant attractive;

• that whatever the sexual relationship between T and S, that said nothing about any sexual activity with anyone else;

• that it would have been preferable if the learned judge had used the words of the Crown, rather than the racing analogy of "riding instructions", in reference to exhibits 14 and 27;

• that exhibit 14 did not show S biting the complainant's breast, as distinct from showing his mouth on or near it;

• that exhibit 27 referred to a great deal more sexual activity than was depicted in exhibit 14, and was not a "script" for what had been depicted in exhibit 14;

• that there was no evidence of the actual sexual relationship between S and T, that what T had written could be a fantasy, and their sexual activities were not relevant to any of the counts on the indictment;

• there was no evidence from anyone of S making extreme demands of T;

• that the Crown had not made the submission that count 3 was a birthday present for S's sexual gratification; and

• that there was no actual evidence that the support person was the complainant's husband, although the jury had the photograph and had heard the evidence.

[187]

[96] Those redirections would have weakened the prejudicial and unfair effects of what had gone before. S's counsel on the appeal argued that the jury had been left for at least a whole day with the effect of the recanted comments, and that is true; but the comments were withdrawn, at counsel's request. The summing up was a lengthy one, beginning at 10.25 am on Thursday 7 September 2006 and resuming, not on the Friday but, on Monday 11 September, because T was indisposed on the Friday. On the Monday the learned judge summarised, at length, the submissions by defence counsel, and the jury retired shortly before midday. The redirections were given at 3.26 pm, concluding at 3.55 pm; the verdict was given at 2.57 pm on 12 September 2006. The critical evidence was in short compass, and the flaws in the summing up were substantially corrected when the judge withdrew some of the comments. The complainant's evidence reads as if she was a firm and clear witness, who described offences committed on her.

[188]

[97] It is a pity the remarks were made in the first place, and that the learned judge did not follow the self-instructions which he informed the jury he usually followed, namely merely of reminding them of arguments by counsel, rather than presenting fresh ones. Since the bulk of the judge's extra comments were retracted in redirections which stressed the need for the jury, before convicting, to be satisfied beyond reasonable doubt with the accuracy of the complainant's evidence, I am not persuaded that a miscarriage of justice resulted from those comments. It would have been better for them never to have been said, than to be said and retracted; but overall the jury was directed to the critical point, and told it was for them to decide.

[189]

[98] S's counsel also argues that even that last point was not achieved, because the learned judge, despite being so requested, had failed to direct the jury that if they could not decide where the truth lay, S was entitled to the benefit of the doubt. Counsel complained that the directions that the judge gave had tended to suggest to the jury that their task was to decide, as between the complainant and S, which of them was telling the truth.

[190]

"Now, members of the jury I am sure within your human experience you would be aware that in most every trial there is conflict of evidence. Some conflict may be able to be explained away by mistake or misunderstanding. Some evidence is so conflicting, so directly opposed it cannot be explained by any other means than at least some evidence is untruthful. In an appropriate case a jury might think all the evidence is untruthful. In this particular case, members of the jury, there is sworn evidence from the complainant and sworn evidence from [S] that is, you might say in certain respects, diametrically opposed. There is quite a substantial conflict on central matters. At least some evidence is untruthful. It is for you to decide the facts. It is for you to decide the evidence that is credible and reliable. That is one of the fundamental tasks for which we have juries, you might readily understand, to resolve conflicts of evidence. In this case at least some evidence is untruthful and it is your view and yours alone on what evidence is credible and reliable and you will evaluate that, as I said, in a cool, calm, unhurried manner and excluding any emotion."[43]

[191]

[100] The learned judge gave two redirections, in the following terms:

[192]

"I said to you that there is conflict between the evidence of [S] and the evidence of the complainant on important and central matters that could not be explained away by mistake. I said to you at least some evidence is untruthful and I said to you in an appropriate case the jury might find all the evidence untruthful, and I would have thought it followed from that but just to clarify there are three possibilities; that the evidence of A is truthful or the conflicting evidence of B is truthful; or you might find neither is truthful.

As I told you in the clearest terms, even if you reject evidence favourable to an accused you cannot convict unless you are satisfied beyond reasonable doubt on evidence that you accept and act on as credible and reliable, establishes every element of the offence. I think I probably made that sufficiently clear but that is to make sure there is no worry about that."[44]

[193]

[101] A similar direction to the last one was given at the conclusion of the summing up. In those circumstances I respectfully disagree with the argument that the judge failed to explain to the jury that if they were unable to determine where the truth lay, then S was entitled to the benefit of the doubt, and an acquittal. The directions required that there be a conviction only if the jury were satisfied beyond reasonable doubt on evidence the jurors accepted as credible that the offence had been committed. I do not consider the directions given were a misdirection.

[194]

[102] The issue for the jury was whether they were prepared, beyond reasonable doubt, to accept her description that she had protested in the terms she described, and whether they would exclude the possibility that that was her description, given as an adult, of what she wished she had said when a silently submissive teenager. That was a matter on which the jurors had heard her evidence and S's evidence, and heard submissions. The learned judge did direct the jury, more than once, that if they accepted the complainant's evidence and were prepared to act on it beyond reasonable doubt, then they could conclude that she was not consenting, and that S could not honestly have believed that she was.

[195]

[103] In the course of the redirections to the jury, the learned judge instructed them that even if they rejected evidence favourable to an accused, they could not convict unless they were satisfied of guilt beyond reasonable doubt on evidence that they did accept and act on as credible and reliable, and which established every element of the offence. Those redirections included that the prosecution case in relation to non-consent on counts 2 and 3 was premised on the evidence of the complainant and on acceptance of that evidence as credible and reliable, and acceptance that the conversations alleged by the complainant took place. The redirections concluded with the instruction that:

[196]

"To convict, as I stressed to you on more than one occasion, even if you reject evidence favourable to an accused, you do not convict on any count against any accused unless after applying the high test I told you till you are satisfied beyond reasonable doubt that the complainant's evidence is credible and reliable."

[197]

[104] Had there been no redirections, the trial would have been an unfair process, and this Court would have had to quash the convictions. But the recanting significantly reduced the risk the jury would be overawed by the views of the judge, who did make it clear that it was the jury's views which were important. I would dismiss S's appeal.

[198]

[105] JONES J: For the reasons expressed by McMurdo P and Jerrard JA, I agree that the appeal of each appellant should be dismissed.

[199]

[2] [1974] AC 85.

[200]

[3] [2004] 2 All ER 467, [18].

[201]

[4] [1990] 2 Qd R 436.

[202]

[5] [1994] HCA 30; (1994) 181 CLR 41, Toohey J 88-89.

[203]

[6] [2005] HCA 8; (2005) 79 ALJR 662, [58], [60].