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[2009] QCA 263
Court of Appeal (Qld)
2009-09-08
Keane and Chesterman JJA and P Lyons J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v WAH [2009] QCA 263
PARTIES: R v WAH (appellant/applicant)
FILE NO/S: CA No 117 of 2008 / DC No 172 of 2008
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Beenleigh
DELIVERED ON: 8 September 2009
DELIVERED AT: Brisbane
HEARING DATE: 27 August 2009
JUDGES: Keane and Chesterman JJA and P Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Appeal against conviction dismissed****Application for leave to appeal against sentence refused
CATCHWORDS: CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – GENERALLY – where appellant charged with counts of rape, indecent treatment and maintaining with respect to complainants who were sisters and the appellant's step-grandchildren – where appellant applied to trial judge for separate trials on basis that evidence of each complainant was not cross-admissible in relation to charges concerning other complainant – where trial judge refused application for separate trials – whether trial judge erred in refusing application / CRIMINAL LAW – PROCEDURE – PROSECUTION – NOLLE PROSEQUI – where appellant arraigned on first indictment and appellant subsequently arraigned on second indictment – where appellant put in charge of jury with respect to second indictment only – where jury convicted appellant on certain counts on second indictment – where prosecution entered nolle prosequi with respect to first indictment upon conclusion of sentence with respect to second indictment – whether procedure offended the "one indictment, one jury" rule – whether procedure constituted a fundamental irregularity / Criminal Code 1899 (Qld), s 563, s 567, s 597A, s 597C / Evidence Act 1977 (Qld), s 21AC, s 21AJ, s 21AK, s 21AM, s 93A / Abdul Rahman v The King-Emperor (1926) 54 LR Ind App 96, cited / Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited / MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited / Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited / Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited / R v BAR (2005) 152 A Crim R 428; [2005] QCA 80, cited / R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited / R v CX [2005] QCA 222, cited / R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281, cited / R v LT [2006] QCA 534, cited / R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67, cited / R v UC [2008] QCA 194, cited
COUNSEL: C L Morgan for the appellant/applicant / M J Copley SC for the respondent
SOLICITORS: Legal Aid Queensland for the appellant/applicant / The appellant/applicant also appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 11 April 2008 the appellant was convicted upon the verdict of a jury of four counts of rape, three counts of indecent treatment of a child, and one count of maintaining a sexual relationship with a child under 16 years of age. He was acquitted of a number of other charges to which particular reference will be made in due course.
On 17 April 2008 the appellant was sentenced to six years imprisonment with eligibility for parole after three years in respect of the offence of maintaining. He was sentenced to lesser concurrent terms of imprisonment in respect of the other offences.
The appellant seeks to have the convictions set aside on a number of grounds which I will discuss directly. He also seeks leave to appeal against the sentence imposed on him on the sole ground that it was manifestly excessive.
At trial the appellant was represented by counsel, but he was unrepresented in this Court when his appeal originally came on for hearing on 6 May 2009. On that occasion the hearing was adjourned to enable the Public Defender, on behalf of Legal Aid Queensland, to consider an issue adverted to by counsel for the respondent, Mr Copley SC.
Ms Morgan of Counsel, instructed by Legal Aid Queensland, represented the appellant when the appeal came on for hearing again, but only in relation to the issues raised by way of amendment to the notice of appeal. The appellant continued to rely upon the grounds of appeal raised originally in his notice of appeal and written arguments he had presented in relation to them.
A brief summary of the evidence at trial and of the course of the proceedings below is necessary for an understanding of the grounds of appeal.
The evidence at trial
The Crown case was that between August 2002 and August 2005 the appellant engaged in the sexual abuse of the complainants who were sisters and the step-children of the appellant's son, JW. At the beginning of the period of offending, the complainant, C, was seven years old and the complainant, K, six years old.
On occasions during the period in question, the complainants and their older brother would stay at the appellant's house. Sometimes the appellant's wife was absent because she worked at night.
On 17 August 2005 the complainants' mother heard their older brother remark to his sisters that something was "gross". She asked the children what they were talking about and C said that the appellant had tickled her "front fanny" and touched her "boobs". The complainants' mother questioned both girls further and, in response, C said that the appellant had touched her outside and inside her underpants.
The next day each of C and K told Ms Allanson, a social worker at the hospital, that the appellant had touched her vagina and chest.
On 19 August 2005 the complainants' mother took them to the police station. The complainants were not formally interviewed by police until 28 August 2005. These interviews were tape-recorded and tendered in evidence pursuant to s 93A of the Evidence Act 1977 (Qld).
At a later interview on 9 March 2006 the complainant, C, spoke for the first time of the incidents which became the subject of counts 6 and 9 against the appellant.
The appellant gave evidence at his trial. He denied all allegations of wrongdoing. In cross-examination of each of the complainants, it was suggested that any intimate touching which might have occurred was accidental while the appellant was tickling or wrestling with her. It was also suggested to each of the complainants that they had concocted their allegations against the appellant.
During the course of the appellant's evidence, he was asked by defence counsel whether his fingers might possibly have ever been outside the girls' clothes but in the area of their vaginas. The appellant said he could not recall that occurring but it could possibly have happened when he was wrestling or tickling the girls. The appellant said that he used to tickle the girls and their brother on their stomachs, sides and inner thighs. He admitted that he had previously conceded that his fingers might possibly have slipped inside one of the girl's underpants during a game of tickling.
There were 15 counts in the indictment. C was the complainant in relation to all counts save counts 10 and 15, in relation to which K was the complainant. The charge on each count, the verdict and evidence of each of the complainants and of the appellant in respect of that count can be summarised as follows:
Count 1 – Rape
C said that the first occasion on which the appellant interfered with her occurred a couple of weeks after she first met him. She was at his house with her brother and K. Her parents and the appellant's wife were outside. The children were watching a cartoon on television in the appellant's lounge room. The appellant was in the lounge room and he touched her private part then 'he went inside and he keeps on licking his fingers and putting them back in.' When asked to explain where he went inside she said, 'It's the part where you pee from'. She said that his hand went under her underpants. He removed his hand, licked his fingers and tried putting it or them back in, she told him to stop and he told her to be quiet. Her brother and sister did not see what occurred.
The appellant gave evidence that he recalled occasions when he watched cartoons with C, K and their brother.
Count 2 - Indecent Treatment
C said that there was an occasion in 2004, subsequent to her accident, when she was to sleep over at the appellant's house. Whilst there she was bitten by an ant. She went inside and had a shower and K stayed outside playing under the sprinkler. After she came out of the shower, wearing only a towel, she entered her Aunt J's room. After initially saying that she could not remember what had occurred there because it had happened too long ago, she said that the appellant was sitting on the bed and he opened her towel and licked 'my thing that I wee out of'. She told him to stop and he said something. She said that the appellant's wife was home on this occasion as was his son JW.
The appellant said in evidence that C and K had been playing in the sprinkler. C got cranky with him when he told her not to sit on the sprinkler. He said the girls had a bad habit of sitting on the sprinkler and letting the water 'run through their privates'. He told the girls to go up and shower. K showered first. C's foot had been bitten by an ant. After he gave her some ice for her foot she went off to the bathroom. He saw her come out of the shower later and she was wearing pyjamas.
Count 3 - Rape
On an evening in 2005 when the appellant's wife had gone to work, C and K went to bed in the appellant's matrimonial waterbed. The appellant came into the room and put his fingers into her 'wee wee part'. She said that he kept on licking his fingers and putting them back in. C said that the incident occurred on a weekend night and the appellant told her not to tell anyone.
The appellant said in evidence that there had been an occasion when he had been on the waterbed with the girls.
Count 4 - Rape - Not Guilty
On an occasion when C and K were in bed in Aunt J's room the appellant came into the bedroom and touched her 'wee wee part' with his fingers. He stopped, took them out, licked them and then put them back in. The bed shook and K, who C said was awake, said, 'What's that, the bed's shaking'.
The appellant in his evidence denied that he ever shook the bed when the girls were in this bedroom.
Count 5 – Rape
C said that there was an occasion when she and K went to bed on a mattress in JW's bedroom at the appellant's house. When K was absent from the room C said that she and the appellant were watching television. The appellant kept on touching her vagina with his fingers. She said he licked them and put them back in her vagina. C said that the appellant's wife was at home because at that time she was working during the day. K and her brother were downstairs watching cartoons.
The appellant in his evidence denied ever touching C in JW's bedroom.
Count 6 - Indecent Treatment - Not Guilty
In the interview conducted in March 2006, C said that in 2004, on the afternoon of a public holiday Monday after her accident, she and the appellant were in his room. She was lying on his bed and he came in and lay on top of her. His pants were down around his knees but he was still wearing underpants. He was moving up and down on top of her and, 'Tried to have sex with me'. She told him repeatedly to get off but he did not. She said that she had had to lie down because she was having a massive headache.
Count 7 - Rape
C said that on her tenth birthday the appellant came over to her house. He came into her room and she showed him some of the presents she had received such as some toy sea creatures and jewellery. She sat on K's bed and the appellant put his hand under her underwear and rubbed inside 'the crack' with his fingers and then licked them.
The appellant said in evidence that he was only in C's bedroom for about two minutes in order to look at her birthday presents.
Count 8 - Rape - Not Guilty
On her brother's 13th birthday C thought that she was at home. She had been watching television and then she went into her bedroom. The appellant stopped what she believed he was doing with K and K left the room. C went in and sat down next to the appellant and the appellant put his fingers 'In the crack where you wee out of'. She kept on asking him to stop but he would not.
In his evidence, the appellant could not recall if he visited the house on this occasion.
Count 9 - Indecent Treatment - Not Guilty
In the interview conducted in March 2006, C said that on a Saturday in July 2005 she was in Aunt J's bedroom lying down. The appellant came in with his pants halfway down but with his underpants still on and got on top of her and moved up and down. She said she told him to stop, he said no, but eventually he did so. Before going downstairs to watch television he told her not to tell anyone.
Count 11 - Rape - Not Guilty. Guilty of the alternative count of indecent treatment of a child
C said that on the occasion of K's ninth birthday, the appellant came over to her house. She was in her bedroom with him and the appellant tickled it and put his fingers in 'the crack'.
The appellant's evidence was that he was at the house on this occasion. He went into the girls' bedroom at C's suggestion to greet her friend Emily. He was in the room for five minutes or so. When he left the girls held onto his legs and arm and he walked out to join the other adults with the girls still holding onto him.
Count 12 - Rape - Not Guilty
According to C, on the occasion of her mother's 32nd birthday, the appellant was in C's bedroom looking at K's birthday presents. After K left the bedroom, C sat down on the bed and the appellant came over and started tickling her 'wee wee part' with his fingers and hands.
Count 13 – Rape – Not Guilty
The last occasion on which the appellant did anything to C occurred on a public holiday a couple of weeks prior to the date of the August interview. C was in the lounge room with her baby brother who could only crawl. She had a headache and the appellant kept on touching her private part and 'in the crack in the end'. She said that he then licked his fingers and tried to put them back in.
The appellant said in evidence that the complainant's elder brother, K and C watched television in the lounge room for nearly an hour. He spent most of that time in the house.
Count 14 – Maintaining in respect of C
This was the count of maintaining in relation to C. The Crown relied upon the particular counts as well as numerous uncharged acts between 1 August 2002 and 18 August 2005.
Count 10 - Rape - Not Guilty. Guilty of the alternative count of indecent treatment of a child
K said that on her birthday she was alone with the appellant in her bedroom and she showed him her presents. She said that the appellant tried to put his finger in her vagina, and licked his fingers before leaving K's bedroom.
The appellant said that he went into K's bedroom for a period less than a few minutes.
Count 15 – Maintaining in respect of K – Not Guilty
This count of maintaining relied upon K's evidence about count 10 as well as the following: She said that on lots and lots of occasions the appellant had touched her vagina and breasts. She said that he played with her private parts using his thumb and he would put his thumb into her vagina. He also licked his finger 'when he was finished putting it in on our - putting it on our vagina'.
The complainants' brother's evidence was that he was at home doing the dishes with his sisters on the occasion when C said that she had been getting sexually abused by the appellant. She told him where the appellant had touched her but he could not then remember where she had said. He said that K was present when C told him these things but she did not really say anything.
Doctor Roylance examined C on 7 September 2005 and observed a variation in the hymen which he did not regard as normal. A blunt object such as a finger could have caused the abnormality.
Doctor Roylance saw K on 7 September 2005. No genital examination was conducted because of K's reluctance to have such an examination performed. Dr Roylance said that he saw K again on 5 October 2005. On that occasion he did conduct a genital examination and found no abnormalities. However, he said that penetration of the labia could occur without any resultant damage to the hymen.
The course of proceedings
On 5 March 2007 Indictment No 135 of 2007 ("the first indictment") was presented in the District Court at Beenleigh. The first indictment charged the appellant with 10 counts of rape involving C (counts 1, 3, 4, 5, 7, 8, 11, 12 and 13), one count of rape involving K (count 10), three counts of indecent treatment of a child under 16 and 12 years under care involving C (counts 2, 6 and 9), one count of maintaining an unlawful sexual relationship in circumstances of aggravation involving C (count 14), and one count of maintaining an unlawful sexual relationship involving K (count 15).
An application for separate trials was made on 26 July 2007. On that date the appellant's counsel sought an order for separate trials under s 597A of the Criminal Code so that the trial of the counts relating to the complainant, C, would be held separately from the trial relating to the complainant, K. This application was rejected.
The reasons of the learned judge who decided the application were relevantly as follows:
"The factual issues are important. Firstly, there will be an issue as to whether or not he actually touched or penetrated the vagina of one or both girls, and; secondly, as far as we know, the issue will be whether or not that was deliberate, or accidental. In each case the physical activities are said to be the same; that is to say, the insertion of a finger and afterwards licking it.
The question is is that sufficient similar fact evidence within the meaning of the decision in Phillips' case. That emphasises that ordinarily there will be separate trials of sexual allegations, and that ordinarily the principle will be maintained that evidence which merely goes to show the propensity of someone to commit a certain sort of offence should not be received into evidence. It may be allowed if it is similar fact evidence; that is to say, if there is a strong degree of probative force because of the combination of events or the similarities in each case.
It has to be seen by a Court that it is just to admit such evidence despite its prejudicial effect before the jury will be allowed to hear it. That is the question here. Another way of looking at it is to ask if this question, if the evidence is accepted by the jury, and that is the assumption on which it is put forward by the prosecution, is there no reasonable view of it consistent with innocence? For today's purposes the Court has to proceed on the basis that the evidence will be given along the lines put forward on this occasion and that the jury would or might accept that it is factually accurate. If that is so, in my view, there would be no reasonable view of the evidence consistent with innocence.
In short, if the evidence is accepted it shows a similar pattern of sexual misconduct towards these two girls, and in my view it would be rightly joined consistently with the principles in Phillips' case".
On 4 October 2007, the matter came on before the District Court at Brisbane for the purpose of video-taping the evidence of C, K, their older brother, and a friend of K, CLW, pursuant to Subdivision 3 of Division 4A of the Evidence Act. On this occasion, the appellant was arraigned pursuant to s 597C(2) of the Criminal Code on the first indictment. He entered a plea of not guilty to all counts. Thus pursuant to s 597C(3) of the Criminal Code, his trial was deemed to have commenced at that time.
That trial proceeded over the following three days during which the evidence of those four witnesses was taken and video-taped. A number of exhibits including the s 93A statements were tendered. Since it was never contemplated that anything more than the pre-recording of evidence would occur, a jury was not empanelled, and the trial was adjourned to 25 October 2007 for mention. The mention occurred on 22 October 2007, and on that occasion the trial was transferred to the District Court at Beenleigh.
It is perhaps convenient to note here that the Crown Prosecutor seems to have thought that it was necessary for the appellant to be arraigned and for the appellant to enter a plea in order to allow the taking and video-taping of the evidence of each of the children to proceed. A perusal of the provisions of Subdivision 3 of Division 4A shows that there is no statutory basis for this view.
On 31 March 2008 the prosecutor presented a new indictment, Indictment No 172 of 2008 ("the second indictment") to the District Court at Beenleigh. This indictment contained a number of minor alterations to the first indictment. No objection was taken to this course by the defence. In respect of counts 2, 6 and 9, there was an addition of the circumstance of aggravation that C was under 12 years of age; and in respect of count 14, there was the deletion of the circumstance of aggravation that C was under the appellant's care at the time of the alleged offence. The appellant was arraigned on the second indictment and he entered pleas of not guilty to all charges. The trial then proceeded. The jury returned its verdict in respect of the counts in the second indictment.
Thirty two exhibits, including the complainants' interviews tendered under s 93A of the Evidence Act, were not formally re-tendered at this trial. The Crown Prosecutor adverted to what she described as her "usual practice" of re-tendering the exhibits, but indicated that she saw no need to do so in this case and the existing exhibit list was maintained. The appellant's counsel at trial acquiesced in this course.
The appellant was not formally discharged in respect of the first indictment until 17 April 2008 after he was sentenced at the conclusion of proceedings on the second indictment. At that time, the Crown Prosecutor entered a nolle prosequi. When that occurred, then by virtue of s 563(3) of the , the appellant was discharged from any further proceedings on the first indictment. It is accepted by the Crown that this should have occurred after the presentation of the second indictment and before the appellant was arraigned upon it.
The original grounds of appeal against conviction
"1. Separate Trials ought to have been ordered in respect to the charges involving each of the two (2) separate complainants.
The verdicts of 'guilty' in respect to counts 1, 2, 3, 5, 7, 11 & 14 are so inconsistent with the verdicts of 'not guilty' in respect to counts 4, 6, 8, 9, 12 & 13 as to render the guilty verdicts unsafe and unsatisfactory."
At the hearing of the appeal, on Mr Morgan's application, the appellant was given leave to add two further grounds to his notice of appeal. These were:
Ground 1AA:
The learned trial judge erred in permitting the prosecution to present a second indictment against the appellant, and to have him arraigned on that indictment while his trial in respect of an earlier indictment relating to the same offences was continuing
Ground 1A:
Alternatively, the directions given to the jury on the use of propensity evidence were inadequate.
Separate trials
For present purposes it may be noted that no question has been raised in this case, either below or in this Court, as to the propriety of the joinder of more than one charge in the one indictment. No question arises as to whether there was an improper joinder under s 567 of the Criminal Code. Rather, the issue is whether the separate trials should have been ordered under s 597A of the Criminal Code. And in this regard, the argument for the appellant in this Court was, as it was before the learned primary judge, that separate trials should have been ordered because the evidence of each complainant was not admissible in relation to the charges concerning the other.1
The conditions of the cross-admissibility of the evidence of C and K were relevantly explained in Phillips v The Queen2 where Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:
"The 'admission of similar fact evidence ... is exceptional and requires a strong degree of probative force' (Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce, approved in Markby v The Queen (1978) 140 CLR 108 at 117 per Gibbs A-CJ, Stephen, Jacobs and Aickin JJ concurring; Perry v The Queen (1982) 150 CLR 580 at 586, 589 per Gibbs CJ; Sutton v The Queen (1984) 152 CLR 528 at 533 per Gibbs CJ; Pfennig v The Queen (1995) 182 CLR 461 at 481 per Mason CJ, Deane and Dawson JJ). It must have 'a really material bearing on the issues to be decided' (Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest, approved in Markby v The Queen (1978) 140 CLR 108 at 117 per Gibbs A-CJ, Stephen, Jacobs and Aickin JJ concurring). It is only admissible where its probative force 'clearly transcends its merely prejudicial effect' (Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Sutton v The Queen (1984) 152 CLR 528 at 548-549 per Brennan J; at 560 per Deane J; at 565 per Dawson J; Harriman v The Queen (1989) 167 CLR 590 at 633 per McHugh J; Pfennig v The Queen (1995) 182 CLR 461 at 481 per Mason CJ, Deane and Dawson JJ). '[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind' (Sutton v The Queen (1984) 152 CLR 528 at 534 per Gibbs CJ). The criterion of admissibility for similar fact evidence is 'the strength of its probative force' (Hoch v The Queen (1988) 165 CLR 292 at 294 – 295 per Mason CJ, Wilson and Gaudron JJ). It is necessary to find 'a sufficient nexus' between the primary evidence on a particular charge and the similar fact evidence (Hoch v The Queen (1988) 165 CLR 292 at 301 per Brennan and Dawson JJ, approving words of Lord Hailsham of St Marylebone LC in Director of Public Prosecutions (UK) v Kilbourne [1973] AC 729 at 749). The probative force must be 'sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused' (Director of Public Prosecutions (UK) v P [1991] 2 AC 447 at 460 per Lord Mackay of Clashfern LC). Admissible similar fact evidence must have 'some specific connection with or relation to the issues for decision in the subject case' (Pfennig v The Queen (1995) 182 CLR 461 at 483 per Mason CJ, Deane and Dawson JJ). As explained in Pfennig v The Queen ((1995) 182 CLR 461 at 485 per Mason CJ, Deane and Dawson JJ):
'[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.'"
Their Honours went on to say that "due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case", but that the similar fact evidence must be excluded if "there is a reasonable view of the similar fact evidence which is consistent with innocence."3
In this case, there were some striking similarities in the evidence of the two complainants. Each of them gave evidence of furtive, fleeting and opportunistic sexual abuse of a small female child where, in each case, the abuser was said to be the father of their stepfather. Importantly, each of the complainants gave evidence of their abuser's distinctly curious behaviour after penetration or attempted penetration of the vagina with his fingers, ie the constant licking of his finger or thumb in relation to counts other than counts 1, 3, 4, 5, 7, 13 and 14 in respect of C, and counts 10 and 15 in relation to K.
In addition to these similarities, as the learned primary judge observed, the evidence of each child was probative in that it tended to rebut the defence suggestion that any intimate touching was accidental. The appellant had made this suggestion in out of court statements of which, in the event, the Crown did not give evidence. As has been seen, however, the case put for the appellant involved the contention that any intimate touching which may have occurred, whether while tickling or wrestling with the complainants, was accidental.
The probative value of the evidence of each complainant in the case relating to the other was not so outweighed by its prejudicial effect that it should have been excluded in the exercise of the judge's discretion. In each case, absent the evidence of the other child, the case of accident put by a grandparent could have seemed compelling. That would have been wrong. As was said in Pfennig v The Queen:4 "… the admissibility of the evidence depends upon the improbability of its having some innocent explanation …" such as accidental or inadvertent touching. The prosecution case was not merely that it was objectively improbable that the appellant molested one of the complainants but not the other. Rather, the evidence was inconsistent with the appellant's case of inadvertent or accidental intimate touching. The conjunction of the events of which each complainant gave evidence was of events of such similarity as to give rise to the inference that they occurred deliberately.5 The prejudicial effect of the evidence could have been (and was) addressed by appropriate directions by the trial judge.
It is said on the appellant's behalf that the learned primary judge overlooked the point that the "striking similarity" of each young girl's version of the appellant's peculiar habit of licking his fingers after penetration or attempted penetration of the vagina was confined to counts 1, 3, 4, 5, 7, 10, 13, 14 and 15 which alleged manual touching of the vagina, and that as a result his Honour should have ordered a separate trial of the counts which involved other behaviour. There are, I think, three answers to this point.
Inconsistent verdicts
In MacKenzie v The Queen,6 Gaudron, Gummow and Kirby JJ explained that, where it is contended that verdicts of conviction and acquittal on different counts are inconsistent in a way which demonstrates the unreasonableness of the convictions, "the test is one of logic and reasonableness".7 If there is a rational basis on which the verdicts can be reconciled then an appellate court cannot regard the convictions as unreasonable on the ground of inconsistency. In my view that is the case here.
The jury may have regarded C as a generally honest and reliable witness, and indeed may have considered that the appellant was probably guilty on all counts. Circumstances peculiar to particular counts may have caused the jury to consider that, although the appellant was probably guilty, there was a reasonable basis for entertaining a doubt about his guilt in respect of the particular count. Thus, the circumstance that C's complaints about the incidents the subject of counts 6 and 9 were not made until March 2006 may have caused them to entertain some doubt as to her reliability in regard to these specific complaints and to give the appellant the benefit of that doubt.
As to the acquittal on count 11, the jury may not have been satisfied beyond doubt that the penetration necessary to constitute rape had occurred because of C's references to the appellant's "tickling" her vagina. The jury may reasonably have given the appellant the benefit of the doubt as to whether penetration occurred.
As to the acquittals on the charges of rape in counts 8, 12 and 13, the circumstance that C's mother was nearby on each of those occasions may have engendered a doubt in the minds of the jurors in relation to the reliability of her evidence in respect of those particular incidents.
The acquittal on count 4 may be explained by the failure of K to give evidence of an incident at which she was said to be present involving the appellant shaking the bed. The absence of corroboration from K may have led the jury to give the appellant the benefit of the doubt on this count.
The acquittal on the charge of rape in count 10 is explicable by the vagueness of K's evidence as to where she was touched. Similarly, with respect to count 15, the charge of maintaining, the jury may well have regarded K's evidence that the appellant interfered with her "lots of times" as insufficient to satisfy them that the appellant had "maintained" a sexual relationship with her.
Other complaints
The appellant also raised in written submissions a number of arguments which went beyond his grounds of appeal, and the grounds of appeal added by leave and argued by Ms Morgan on his behalf. I shall deal with these in turn.
The first of these complaints is that the learned trial judge wrongly refused to allow the appellant's counsel at trial to cross-examine the complainant's mother on the footing that the mother had "driven" the complaints against the appellant. But the only bases for such a suggestion identified by the appellant's counsel at trial were that the mother had questioned the girls when she had overheard the conversation of 17 August 2005 between the complainants and their brother and that the mother had been willing to attempt to record a conversation with the appellant in which it was expected that the appellant might make admissions of misconduct. On neither of these bases could a suggestion have fairly been put to the complainant's mother that she had influenced the complainants to make their allegations against the appellant.
A second issue raised by the appellant is that one of K's friends, CLW, gave evidence that K complained to her about the appellant and said that C told her that the appellant had also interfered with C. The record of interview with CLW in which this assertion appeared was tendered pursuant to s 93A of the Evidence Act 1977 (Qld). This record of interview was tendered at trial as evidence bearing upon the credibility of K's evidence against the appellant. The appellant's counsel had not sought to have CLW's hearsay statement edited out of the record of interview before it was tendered. The learned trial judge noted the presence of the hearsay statement and directed the jury to disregard it completely. The appellant's counsel at trial did not suggest that this direction would not suffice to cure any prejudice which might have enured to the appellant, and it is impossible to suppose that the jury would not have accepted and acted in conformity with the judge's direction.
It was not entirely clear whether the conversation between K and CLW occurred before K's record of interview with police. The learned primary judge directed the jury to disregard CLW's testimony entirely if they considered that the conversation took place after K's interview with police. Once again, there is no reason to think that the jury disregarded this direction. Indeed, the jury's verdicts of acquittal in relation to the counts relating to K confirm that the appellant was in no way prejudiced by this evidence.
Ground of appeal 1AA
On behalf of the appellant it is argued by Ms Morgan that the presentation of the second indictment and the arraignment of the accused upon it while the first trial was still pending was a fundamental irregularity: either the appellant was tried on two indictments at the same trial, or he was subject to two trials at the same time in respect of the same conduct.
There can be no doubt that the appellant was entitled to be tried upon only one indictment.8 That having been said, both sides proceeded on the basis that the appellant was being tried only on the second indictment. That this was so is to some extent confirmed by the circumstance that the nolle prosequi in respect of the first indictment was entered, without remark, at the conclusion of the sentencing process. The appellant could have objected to being arraigned a second time, while the first indictment was still pending, but he did not. In every sense, so far as the trial in which the appellant was convicted was concerned, the rule of criminal procedure "one indictment, one jury" was observed. The submission made by Mr Copley for the respondent is that the appellant is to be taken to have impliedly agreed to the reception at his second trial of the evidence tendered at the first trial. That submission should be accepted: there was no legal obstacle to such a course in that it was open to the appellant through his counsel to agree to the reception of the evidence which had already been tendered.
Because each of C, K, their brother, and K's friend, CLW, was an "affected child" within the meaning of s 21AC of the Evidence Act, the provisions of Subdivision 3 of Division 4A of the Evidence Act applied to taking that child's evidence for the trial on indictment of the offences with which the appellant was charged. Section 21AJ of the Evidence Act required that the indictment be presented before each child's evidence was taken and video-taped under s 21AK.
Section 21AM(1) of the Evidence Act provides relevantly:
"A video-taped recording of the affected child’s evidence made under this subdivision for a proceeding ...
(a) is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and
(b) is, unless the relevant court otherwise orders, admissible in—
(i) any rehearing or retrial of, or appeal from, the proceeding; or
(ii) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances …"
The s 93A statements and the video-taped pre-recorded evidence of the children were tendered as exhibits at the first trial. There is no suggestion that these pieces of evidence were not admissible at the trial on the second indictment. Section 21AM(1)(a)(ii) would, I think, preclude acceptance of such a suggestion. However that may be, the reception of the evidence on the trial of the second indictment proceeded in accordance with the apparent agreement of both sides.
It may be accepted that there are formal deficiencies in the trial process which cannot be waived by an accused:9 the decision of this Court in R v LT10 is an illustration of such a case. But in this case the irregularity as to the timing of the nolle prosequi in respect of the first indictment did not mean that the appellant was not properly put in charge of the jury at his trial. The trial which commenced on the first indictment as a result of the unnecessary arraignment of the appellant remained pending until the nolle prosequi was entered, but the appellant was convicted after a trial on only one indictment by one jury upon evidence which was admissible against him and which was received at that trial with the tacit agreement of his counsel.
I would reject this ground of appeal.
Ground of appeal 1A
On the appellant's behalf it is also argued by Ms Morgan that the evidence of C in relation to count 2 (cunnilingus), counts 6 and 9 (lying on top of C) and count 11 (cleaning her "wee-wee") was inadmissible against the appellant in his trial on the allegations of K in that it was not probative of whether he had deliberately touched K in the manner alleged by her. It is also argued that if the counts in relation to C were properly joined in relation to the counts concerning K, then the directions given to the jury as to the use which they might legitimately make of the evidence were relating to each complainant.
The learned trial judge directed the jury as follows:
"I want to talk to you about uncharged sexual acts. The defendant is charged only with the offences set out in the indictment. You must consider each charge separately. There are 15 of them. If you find that you have a reasonable doubt about an essential element of a charge, you must find the defendant not guilty of that charge.
In addition to the evidence of the complainants concerning the offences charged on the indictment, you have also heard evidence from both [C] and [K] as to uncharged sexual acts that are not the subject of counts on the indictment. As you've heard, neither [C] nor [K] was specific about when that activity occurred or in what circumstances. Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only. If you accept the evidence, it shows, so the prosecution says, the true nature of the relationship between the defendant and the complainants, thus placing the alleged events, the subject of the charges on the indictment, in their proper context.
You should have regard to the evidence of the incidents not the subject of charges only if you find it reliable. If you accept it, you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he is charged. So it would be quite wrong for you to reason you are satisfied he did those acts on other occasions, therefore he's likely to have committed a charged offence or offences.
Remember that the evidence of incidents not the subject of charges comes before you only for the limited purpose I've mentioned, and before you can find the defendant guilty of any charge you must be satisfied, beyond reasonable doubt, that the charge has been proved by evidence relating to that charge. If you do not accept the evidence of the complainant relating to incidents not the subject of charges, take that into account when considering her evidence relating to the alleged events, the subject of the charges before you.
Now you'll remember that I've told you that you must consider the evidence in relation to each charge separately and reach a separate verdict in respect of each charge. That direction is subject to the following directions on how you may use the evidence of the complainants, in combination, but only in the limited way described in these directions: You must look at all the evidence to see if the prosecution has proved its case on each charge, against each complainant, and you must be satisfied that the evidence of each complainant is credible and reliable before you can use that complainant's evidence in any way.
In considering that, you must be satisfied that the evidence of each of the complainants is independent, and I direct you that you cannot use the evidence of the complainants, in combination, unless you are satisfied that there is no real risk that the evidence is untrue by reason of concoction. The value of any combination, and likewise any strength in numbers, is completely worthless if there is any real risk that what the complainant said is untrue by reason of concoction by them.
You must be satisfied that there is no real risk of concoction. A real risk is one based on the evidence, not one that is fanciful or theoretical. The evidence of each of the complainants cannot be used in the following ways when considering the evidence of the other complainant: You cannot use that evidence to reason like this: 'The evidence persuades us that he is the sort of person who could commit these sort of offences, or is of bad character, and therefore we'll convict him of all the charges.'
You cannot say to yourselves that if you're satisfied, beyond reasonable doubt, that he committed offences against either [C] or [K], that he therefore must have committed the offences alleged by the other and so we will convict of them as well." (emphasis added)
Ms Morgan argues that the directions given by the learned trial judge excerpted above were given only in relation to uncharged acts and that the jury would not have understood that they were directed to the charged acts. That argument cannot be sustained. The last four paragraphs of the excerpt set out above were concerned with the evidence relating to the actual charges against the appellant.
Ms Morgan then argues that the learned trial judge did not identify for the jury the purpose for which the evidence of each of the complainants might legitimately be used in relation to the allegations of the other complainant. I do not accept this argument.
The first point to be made here is that at trial the defence did not seek directions to the jury in the terms now said to be essential. As can be seen from the directions which I have excerpted, the learned trial judge directed the jury as to how they might not use the evidence in question. It is true that the jury were not directed as to how they might legitimately use the evidence, but the relevance of the evidence on the issue of accidental touching was not something on which the jury required instruction. The issue of accidental touching was squarely before the jury: they did not need to be reminded that the evidence in question tended to negative that possibility. It was certainly a reasonable forensic judgment on the part of the appellant's trial counsel that the jury did not need to be told by the trial judge that they might legitimately use the evidence to rebut the defence's suggestion of accidental touching.
Secondly, the jury were told of the need to consider each count separately, and to be satisfied beyond reasonable doubt of the appellant's guilt by the evidence relating to that count, and to avoid propensity reasoning. These directions were, I think, sufficient to prevent undue prejudice to the appellant.
In this regard, the jury acquitted the appellant on counts 6, 9, 11 and 15, and on the rape charge in count 10. This tends to confirm that the jury heeded the warning which the judge gave as to the processes of reasoning which were not open to them. It also tends to vindicate any decision made by the appellant's counsel at trial that the appellant would not have been advantaged by insisting that the trial judge explain to the jury in detail the permissible mode of reasoning whereby the evidence of each of the complainants could be used to convict the appellant in the case concerning the other.11
I would reject this ground of appeal.
I turn now to consider the appellant's application for leave to appeal against sentence.
Sentence
The suggestion that the appellant's sentence was manifestly excessive cannot be sustained.
In my respectful opinion, the sentenced imposed on the appellant was distinctly moderate. Reference may be made to this Court's decisions in R v UC12 and R v CX13 which confirm that a sentence of six years imprisonment after a trial for the offence of maintaining was well within the appropriate range. It must be borne in mind that the maximum penalty for the offence of maintaining a sexual relationship with a child is life imprisonment. The appellant's misconduct in this case involved an appalling and persistent breach of trust over more than two years in respect of which he has shown no remorse.
The appellant also raised an argument that the learned sentencing judge revealed a bias against the appellant during the course of the trial. The appellant referred to a number of passages in the transcript of the trial where the judge took the appellant's counsel to task for questioning of the complainants which his Honour thought unfair and "bullying" in its approach.
During the course of the trial, the judge commented that he assumed that the cross-examination reflected the appellant's instructions to his counsel and that he would bear that in mind in sentencing the appellant should he be convicted. The appellant's counsel submitted that the appellant could not be held responsible for the manner in which cross-examination was conducted. The learned sentencing judge expressly accepted this submission in his sentencing remarks. There is no reason why this Court should not act upon the basis that the learned sentencing judge was as good as his word. It certainly cannot be said that the sentence imposed was so excessive as to reveal an element of punishment for the conduct of the appellant's counsel.
Conclusion and orders
None of the grounds of appeal are made out.
The appeal against conviction should be dismissed.
The application for leave to appeal against sentence should be refused.
CHESTERMAN JA: I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by Keane JA.
P LYONS J: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with his Honour's reasons and the orders he proposes.
Phillips v The Queen (2006) 225 CLR 303 at 307 [7]; R v BBG (2007) 174 A Crim R 86 at [2] – [4]. ↩
(2006) 225 CLR 303 at 320 – 321 [54] (citations footnoted in original). ↩
(2006) 225 CLR 303 at [63]. ↩
(1995) 182 CLR 461 at 484. ↩
R v BAR (2005) 152 A Crim R 428 at 431 [5]. ↩
(1996) 190 CLR 348 at 365 – 368. ↩
(1996) 190 CLR 348 at 366. ↩
R v Janceski (2005) 64 NSWLR 10 at [86], [187], [223]; R v Swansson; R v Henry (2007) 69 NSWLR 406 at [11] – [14]. ↩
Cf Abdul Rahman v The King-Emperor (1926) 54 LR Ind App 96 at 104. ↩
[2006] QCA 534. ↩
Cf Dhanhoa v The Queen (2003) 217 CLR 1 at 13. ↩
[2008] QCA 194. ↩
[2005] QCA 222. ↩
R
WAH [2009] QCA 263
(2003) 217 CLR 1
(1996) 190 CLR 348
(1995) 182 CLR 461
(2006) 225 CLR 303
(2005) 64 NSWLR 10
(2007) 69 NSWLR 406
(1978) 140 CLR 108
(1982) 150 CLR 580
(1984) 152 CLR 528
(1989) 167 CLR 590
(1988) 165 CLR 292
I turn now to consider the grounds on which the appellant challenges his conviction.
First, the case put by the defence was not merely that any touching of the vagina of either complainant in the course of an episode of tickling was accidental. The case put by the defence was that conduct complained of may have occurred in the course of the appellant tickling or wrestling with each complainant.
Secondly, to the extent that this leaves the conduct alleged in count 2 concerning the complainant C, the evidence concerning this charge is compelling as negativing the suggestions of accident in respect of the other counts. There could not possibly be an innocent explanation of this conduct and if the evidence were to be accepted, it casts strong light on the assertions of innocent touching on the other occasions.
Thirdly, the defence did not suggest to his Honour that, if its application for separate trials was rejected, there should nevertheless be separate trials of counts 2, 6, 9 and 11. Accordingly, the learned primary judge cannot be said to have erred in rejecting an application that was never made to him. It is difficult to see how it can be said that a miscarriage of justice occurred here: there may well have been a good forensic reason for the course taken by the defence. It may have been thought that if there was to be a joint trial, then the presentation of the defence case of concoction would be facilitated if the full account of each complainant was put before the same jury by each complainant. Such a strategy was not obviously unsound: the verdicts of the jury may well indicate that the suggestion by defence counsel that one complainant was just "backing up" the other may have struck a chord with the jury. I am not able to see that the pursuit of this course by the defence led to a miscarriage of justice in the sense that a real chance of acquittal was unfairly denied to the appellant.