R v White [1997] QCA 415

The complainant's evidence was principally in the form of two video recordings of a police interview of the complainant; some oral evidence was also adduced, in which to some extent the complainant elaborated upon what she had said in the police interview. Counts 1, 3 and 4, the allegations of unlawful and indecent dealing, alleged, not precise dates, but periods of time: as to one, between 8 April 1996 and 26 August 1996, and as to the other two, between 18 September 1995 and 25 September 1995. The complainant's evidence, if accepted, showed that there were substantially more than 3 instances of unlawful and indecent dealing.

The case illustrates the difficulties which may be encountered when a young complainant asserts that he or she has been subjected in a persistent way to sexual interference. The basic rule, established or reaffirmed in S v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266, is that the prosecution must charge and prove only specific, identifiable acts. Experience shows that, particularly with young complainants, the difficulties of fulfilling this requirement may be considerable. No doubt it was in part that experience which induced the legislature to enact s. 229B of the Code, recently amended by Act No. 3 of 1997. It is not clear why, in the present circumstances, a s. 229B charge was not laid; possibly the unsympathetic treatment accorded to s. 229B in Kemp (C.A. No. 82 of 1995, 29 August 1995) discourages use of the section. The whole problem may possibly require further consideration by Parliament.

In the present case the two principal difficulties facing the Crown are, firstly, that the judge did not explain to the jury what use they were entitled to make of the evidence of uncharged offences; secondly, it was not made clear by the evidence or the judge's directions to what counts the evidence related. We propose to deal with both aspects in some detail, although our conclusion on the first point, in favour of the appellant, is sufficient to dispose of the matter.

In some circumstances evidence as to uncharged offences or of improper acts (not being offences) may be led as relevant to prove the Crown case. Whenever that happens it is necessary for the judge to explain to what use such evidence of uncharged offences, or other improper acts, may be put by the jury. In the present case that did not occur.

There are in reality two questions, first, whether evidence of uncharged offences may be let in and secondly, to what use such evidence may be put, when let in; the two questions are inter-related. A line of authority, of which Allen [1937] St.R.Qd. 32 is an example, justifies letting in evidence of uncharged sexual acts engaged in with the complainant, by a person charged with sexual offences. The cases give various reasons for letting such evidence in. In Allen itself it was said that the evidence was let in as "showing circumstances constituting a continuous cause of action of which the offence charged was one link in the chain" (33), that in the absence of the evidence the jury could not judge properly whether the charged offences had been committed (34) and that it showed a relationship between the parties. The first possibility - one link in the chain - has a connection with the rule that "a connected series of events occurred which should be considered as one transaction" may be let in, even if some of the events are uncharged offences: O'Leary [1946] HCA 44; (1946) 73 C.L.R. 566 at 575, 577, 582. In Witham [1962] Qd.R. 49, evidence of this sort was held by Stable J to be admissible to show the existence of a guilty passion. The authority of Witham was reaffirmed in R v. T.J.W,, ex parte The Attorney-General [1988] 2 Qd.R. 456, see per Thomas J at 457. In the High Court, the admission of such evidence has the authority of a dictum in Perry (1982) 150 C.L.R. 580 at 586 and, more importantly, that of B [1992] HCA 68; (1992) 175 C.L.R. 599.

In B, the evidence was not of uncharged offences, but of prior convictions for sexual offences against the same complainant; further, the evidence was led by the defence, not by the prosecution. All the judges considered whether the evidence was probative in the Crown case and a majority held that it was, as evidence of similar acts, or of an "unnatural and abnormal passion" (602), or on the basis that it -

"set the background in which the jury were to evaluate the daughter's evidence and . . . removed some of the natural reserve that the jury might otherwise have felt in accepting an allegation that the accused had indulged an abnormal passion for his daughter". (604, 605)

In Beserick (1993) 30 N.S.W.L.R. 510, it was argued that B makes evidence of this kind inadmissible unless it has a high degree of probative value, but that proposition was rejected (520) and the Court held that such evidence can be let in as showing the existence of a sexual relationship and placing evidence of the offence charged "into a true and realistic context" (522). See also R v. S (1992) 58 S.A.S.R. 523 at 526.

In Pfennig [1995] HCA 7; (1995) 182 C.L.R. 461, the High Court reviewed the admissibility of "propensity or similar fact" evidence, which was held to be admissible on the same basis as circumstantial evidence. Pincus JA has suggested that the test which should be applied under Pfennig is whether there is no reasonable view of the evidence open other than as "supporting an inference that the accused is guilty of the offence charged": Wackerow (C.A. No. 62 of 1996, 28 August 1996); Kemp (No. 2) (C.A. No. 82 of 1996, 13 December 1996). A question may arise as to whether evidence of the Witham type must past such a test, or the stricter test which may be derived from Pfennig:

" . . . when taken with the other evidence in the case, there is no reasonable view of the evidence which is consistent with the innocence of the accused":

see Dowsett J in Riley (C.A. No. 109 of 1997, 9 September 1997).

If the stricter Pfennig test is applicable to evidence of the Witham kind, it is difficult to see how it could ever be got in, where the evidence provides any sensible reason - for example, a degree of inconsistency in the complainant's story - to reject the Crown case. Partly for that reason, but principally because of the weight of authority favouring that view, we decide this case on the basis that evidence of the Witham type may still be admitted, whether or not it passes the test for admissibility of circumstantial evidence, and that it may be admitted as evidence of the existence of a sexual relationship between the parties. There is of course a discretion to reject such evidence, if its prejudicial effect exceeds its probative worth.

In BRS (High Court, unreported 25 September 1997) the accused was charged with having had homosexual intercourse with H; evidence of sexual activity with W was admitted. It got in because it contradicted evidence of good character called on behalf of the accused; s. 413B of the Crimes Act 1900 (N.S.W.) permitted the evidence to be used in that way. The Court held that, at least in part, the evidence of the activities with W was corroborative of the Crown case that the offences against H were committed; but the trial judge had said nothing to discourage the jury from treating the evidence as probative, simply on the basis that it showed the accused's homosexual tendency. Toohey J remarked:

"Absent a clear direction on those aspects, there was a likelihood that the appellant would not receive a fair trial because the jury might regard his actions when with W as showing that he was the sort of person to engage in the conduct described by the complainant". (12)

McHugh J, in discussing whether the judge's omission to give directions about W's evidence might have resulted in the accused's conviction said:

"That question depends on whether the jury might have used W's evidence to conclude that the appellant had homosexual tendencies that made it more probable than not that he had oral and anal intercourse with the complainant". (19)

"there was a real risk that the jury were being invited to use W's evidence as demonstrating a criminal propensity on the part of the appellant". (33)

In the present case, there is a degree of artificiality involved in holding that the jury should have been given directions to the effect that the evidence of uncharged offences could properly be used to show the existence of a sexual relationship between the accused and his step-daughter, but not to show a mere propensity to commit offences of the kind in question. Nevertheless, it appears to us that it is necessary to decide that the verdicts against the accused are vitiated for lack of direction on the proper use of the evidence of uncharged offences. It has to be said in favour of the appellant that one can only guess what use the jury thought they were supposed to make of that evidence. There was no request for redirection, but in the present case, following BRS, it appears to us that one must hold that the complete absence of any direction on the use of the evidence is fatal to the convictions. McHugh J remarked in BRS (19)

"Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice".

It follows, as we have said, that the absence of any direction as to the proper use to be made of the evidence of the uncharged convictions was a fatal error and the appeal must be allowed.

Lack of identification of the evidence relating to the charged offences

It is convenient to introduce this subject by quoting part of the learned primary judge's directions. His Honour said at one point:

"Count 3 and 4, what she said about that, initially happened when she was talking about this screaming that I have just dealt with. When the police officer asked her what time it was when she had screamed she did not respond to that question. She said, "He's been doing it ever since Mum took - Mum had Kim. He started when - the night after he took Mum to the hospital and he did it. He did it before we left sometime, a couple of days before." (87)

Counts 3 and 4 were identical allegations, as framed in the indictment, but they were intended to relate to separate incidents which apparently followed closely upon one another. In the record of interview (138) the complainant was referred to a time before her mother went to hospital to have a baby, the complainant's sister Kimberley, and got the response:

"Well, he started it then and he keeps on telling me to suck his private part. I've been doing it, um, for a couple of months . . . "

The complainant said (139) "He did it in the middle of the night . . . He gave me this, um, this white long stick thing that he said that was Mum's toy" . The complainant went on to say that she was told to put the toy in and out of her mouth. She added that later on in the night she was blindfolded and then the appellant put it in and out of his mouth and then in and out of the complainant's mouth. She then went on to explain, in effect, that he did the same thing with his penis. The complainant then said that the appellant spread her legs, blindfolded her and put his penis up to her face as well as inviting her to suck his testicles and that waswe gather the main evidence supporting count 4.

In the judge's directions, after the passage we have quoted, the primary judge discussed the evidence to which we have referred, but it was not specified what part of the discussion related to count 3 and what to count 4.

It is not at all clear in the record of interview that what we take to be count 3 and count 4 are separate, distinguishable incidents; but, more importantly, the judge's direction contained no explanation of the way in which count 3 was to be distinguished from count 4. As appears from the passage we have quoted from the summing-up, discussion of these two counts was to some extent mixed up with discussion of the uncharged offences. In S v. The Queen a rather similar situation arose; a number of charges of sexual offences against a girl were specified as having happened during particular periods of time. The evidence of the complainant included reference to numerous acts of sexual intercourse engaged in by the accused and they were described in detail. Dawson J said:

" . . . notwithstanding that each count in the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count". (273)

" . . . as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the [accused] by reason of the failure to do so". (282)

In S v. The Queen the appellant's convictions were quashed on the ground that the jury's verdicts against the appellant might have reflected a view that, because incest occurred fairly often, it must have occurred at least once during each of the periods of time the subject of the indictment. The case shows that where the evidence proves a number of rather similar acts each constituting an offence, the prosecution must associate a particular identified incident with each charge and prove its occurrence. Here, neither the evidence nor the judge's direction clearly identified the event or events said to constitute count 3 in such a way as to distinguish them from those said to constitute count 4.

Mr Ridgway, for the respondent, contended that if the convictions on counts 3 and 4 had to be set aside - an outcome against which he did forcibly argue - nevertheless the convictions on counts 1 and 2 could stand. At first sight, this submission has some substance, because count 1 is an allegation of unlawful and indecent dealing in a particular period of time and count 2 an allegation of having administered stupefying drugs with a specified intent, during a different period. But even in that area there are difficulties. The Crown's intention appears to have been to charge as count 1 an incident in which the appellant put his finger in the complainant's vagina; that was referred to in the evidence as an occasion when the complainant screamed. In the interview, the subject of count 2 was introduced by the complainant being asked a question about "when, the night after Mum went to hospital to have Kimberley that [the appellant] had you on the - lying on the floor and he said to open your legs". That appears to be a reference back to count 4. The interview then went on:

"Did - did anything happen?-- And I forgot to tell you he - first he gave me Coke and then he put something in the Coke afterwards.

CONST UPSON: What did he put in the Coke?-- Some alcohol drink or something.

Okay. Why did he give you the alcohol-----?-- And - and he gave me these tablets to, um, drink with the Coke.

What did the tablets look like?-- They - they were white circles.

White circles?-- And I felt really funny and giddy."

Shortly afterwards, the interview was temporarily discontinued and when it resumed the complainant discussed further the effect of the pills on her, saying among other things:

"Um, he gave it to me when - when Winston went to bed. And - and then he started to do, um, lots of other stuff as well".

Although this is not as clear as it might be, it appears that count 2 consists in an event associated with count 3; but as we have pointed out, count 3 is not easily distinguishable from count 4. It seems unnecessary to go into more detail; at least with respect to counts 3 and 4, and probably with respect to count 2 also, there was a lack of that definition of a particular incident, as constituting each count, which as S v. The Queen illustrates the law requires. If this were the only ground, we would allow the appeal on it alone.

We should add that it may be a prudent course, in a case of this sort, for the prosecution to give the best written particulars it can to identify the charged incidents, whether particulars are requested or not.

We note that in Beserick (above), Hunt CJ at CL remarked:

"Where the sexual activity between the complainant and the accused has taken place over a long period, it is the usual practice of the Crown to charge the accused in relation to a number of `representative' incidents which sufficiently reflect the total criminality involved, spread over the whole of that period". (522)

It appears that the charged incidents are "representative" in the sense that, while the accused may be punished only for the offences of which he is convicted, the other offences are taken into account as showing that the offences charged were not isolated instances. In Queensland there is the decision in R v. D [1995] QCA 329; [1996] 1 Qd.R. 363, to the effect that in a case of this sort the evidence of uncharged offences cannot be considered for sentencing purposes. That is, in this State the only permissible purpose of calling evidence of the uncharged sexual offences against the same complainant is to support the Crown case that the charged offences were committed. With the qualification that the burden on the Crown of identification of particular incidents is less if the charge is one of maintaining an unlawful relationship of a sexual nature, under s. 229B, the law is that the prosecution must carefully identify the particular incidents which are charged and that identification must be made plain to the jury. Further, the jury must be told for what purpose the uncharged incidents may be used, in proof of guilt.

The appeal must be allowed, the convictions quashed and a new trial ordered.

I have had the advantage of reading the joint reasons for judgment of Pincus JA and Muir J. I agree with those reasons, and with the orders they propose.

It appears to me that notwithstanding Pfennig [1995] HCA 7; (1995) 182 CLR 461, evidence of past sexual impropriety between the appellant and his stepdaughter, which if accepted would amount to criminal conduct, was admissible as showing "the relationship between the two persons involved in the commission of the offence, or the guilty passion between them" (S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 275 per Dawson J, 279 per Toohey J, and Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 631 per McHugh J), provided it had "a sufficiently high degree of relevance ... to justify its admission" (S, 275 per Dawson J), or its probative value raised "the objective improbability of some event having occurred other than as alleged by the prosecution" (S, 287 per Gaudron and McHugh JJ). I put it this way because if applicable to this species of evidence, then as I read Pfennig, strictly applied, it would almost certainly always lead to its exclusion. The statements in S and Harriman seem to place this sort of evidence into a category of its own, so that the approach previously taken in this Court, as illustrated for example by R v Witham [1962] Qd R 49, 73-4, 77, 82-3 per Stable J, continues to be appropriate. I note also what Toohey J said in Pfennig (pp.506-7).

As to the particularization of the conduct involved in the respective charges, it is not uncommon for defence counsel to seek particulars at the commencement of a trial. In a case like this, the prosecutor should preferably make it clear to the jury in the opening address what precise conduct is relied on for the respective counts, so that the jury will be in a position to assess the level of proof of those respective counts as the trial progresses. The jury must not be left in any doubt about this, and if the prosecutor fails to descend to the requisite particularity, a trial judge should in my view insist that he or she do so.