SUPREME COURT OF QUEENSLAND

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1 SUPREME COURT OF QUEENSLAND CITATION: R v SCW [2018] QCA 10 PARTIES: R v SCW (appellant) FILE NO/S: CA No 104 of 2017 DC No 959 of 2016 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction DELIVERED ON: 20 February 2018 DELIVERED AT: District Court at Brisbane Date of Conviction: 21 April 2017 (Farr SC DCJ) Brisbane HEARING DATE: 9 November 2017 JUDGES: ORDER: Fraser and Gotterson JJA and Brown J Appeal dismissed. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL MISDIRECTION AND NON-DIRECTION PARTICULAR CASES WHERE APPEAL DISMISSED where the appellant was convicted by a jury of 12 counts of sexual offending where the first complaint was made more than two years after the alleged offending where there was an inconsistency in the complainant s first complaint and eventual statement to police where the complainant was between being fully asleep and fully awake at the time of the alleged offending where the alleged offending occurred in close proximity to the appellant s wife who was unaware of any offending where defence counsel sought a direction in terms of Robinson v The Queen to be given to the jury whether the judge erred in not giving a Robinson direction CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS OF APPEAL CONDUCT OF PROSECUTOR OR PROSECUTION where the appellant contends the prosecutor, in her closing address, implied to the jury that defence witnesses had colluded inappropriately where the appellant further contends that the prosecutor had not put to the defence witnesses that they had colluded in that way and therefore contravened the rule in Browne v Dunn whether the conduct of the prosecutor occasioned a miscarriage of justice

2 2 Browne v Dunn (1893) 6 R 67 (HL), cited R v Reynolds [2015] QCA 111, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, distinguished COUNSEL: SOLICITORS: J R Hunter QC for the appellant D L Meredith for the respondent Grant Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour. [2] GOTTERSON JA: At a trial in the District Court at Brisbane, the appellant, SCW, was found guilty on 21 April 2017 of 12 counts of sexual offending. All counts, except Count 4, alleged offending against a female child, S. Count 4 alleged offending against her younger sister, P. All the offending was alleged to have taken place at Boreen Point. [3] Each of six of the counts alleged offending as having occurred on an unknown date between 14 December 2012 and 3 January They were: Count 1: Count 2: Count 3: Count 4: Count 5: Count 6: rape; unlawful and indecent dealing with a child under 16 years in his care; unlawfully procuring a child under 16 years in his care to commit an indecent act; wilfully and unlawfully exposing a child under 16 years (and actually under 12 years) in his care, to an indecent act by him; rape; unlawful and indecent dealing with a child under 16 years in his care. [4] The other six counts each alleged offending on an unknown date between 20 September 2013 and 8 October These counts were: Count 7: Count 8: Count 9: unlawful and indecent dealing with a child under 16 in his care; rape; unlawful and indecent dealing with a child under 16 in his care; Count 10: unlawful and indecent dealing with a child under 16 in his care; Count 11: rape; Count 12: unlawful and indecent dealing with a child under 16 in his care. [5] The appellant was also convicted and sentenced on 21 April The sentence for Count 5 was imprisonment for four years and six months; for Counts 1, 8 and 11, it was four years imprisonment; and for all other counts, it was two years imprisonment.

3 3 All sentences are to be served concurrently. A parole eligibility date at the midpoint of the sentence for Count 5, 21 July 2019, was fixed. [6] On 18 May 2017, the appellant filed a notice of appeal against his convictions. 1 Leave to amend this document to add a second ground of appeal was granted at the hearing of the appeal on 9 November Circumstances of the alleged offending [7] The two time periods referred to in the counts corresponded with school holidays. The offending was alleged to have occurred during five discrete incidents within these two periods. The offending charged in Counts 1 to 5 was alleged to have occurred at the appellant s residence. Count 1 alleged rape by the insertion by the appellant of a finger, or fingers, into S s vagina. The allegation in Count 2 was that the appellant licked S s vagina; in Count 3, it was that he took S s hand and placed it on his penis; and in Count 5, that he forced S to place his penis in her mouth. Count 4 alleged that S s sister, P, witnessed the conduct the subject of Count 5. [8] Count 6 concerned an incident that allegedly occurred in a car. The offending involved the appellant s touching of S s breasts and vagina. [9] Counts 7, 8 and 9 were alleged to have taken place at a house diagonally opposite the appellant s residence. The first of these counts alleged that the appellant touched S s breasts; the second, that he inserted a finger, or fingers, into her vagina; and the third, that he licked her vagina. [10] Counts 10 and 11 concerned conduct on the part of the appellant which was alleged to have occurred at his residence at a time when he and S were seated at a computer. Count 10 alleged that the appellant touched S s breasts. The conduct alleged in Count 11 was that he inserted his finger, or fingers, into S s vagina. [11] The last, Count 12, related to an incident at a nearby lake. It alleged that the appellant touched S s vaginal area while they were kayaking on the lake. [12] The appellant was the step-father of J who had been a partner of the mother of S and P. J and the mother co-habited between 2009 and S was born in July 2000 and P in September [13] The appellant lived at Boreen Point. The offending was alleged to have occurred during school holiday visits there, and at times when S and P were left in the care of the appellant and his wife while J and their mother participated in activities such as fishing. The complaints and the trial [14] S made a disclosure to a boyfriend, D, about the appellants conduct in late Some months later, D reported it to S s mother who spoke to S and P about it. They then made disclosures to her. The mother took S to a police station on 7 April 2015 to make a complaint. [15] The appellant pleaded not guilty to all counts in September His trial began on 10 April The duration of it was extended because a juror was ill for a day and the four day Easter break intervened. 1 AB

4 4 [16] S gave pre-recorded evidence in September Her evidence in chief consisted principally of two statements she had made to police on 7 April 2015 and 8 May 2015 respectively, which were admitted pursuant to s 93A of the Evidence Act 1977 (Qld), 2 a notebook she had put together before she spoke to police, 3 10 photographs 4 and oral testimony identifying features depicted in the photographs which were referred to in her statements. [17] P and D also gave pre-recorded evidence in September Their statements given to police on 7 April 2015 and 8 May 2015 respectively 5 were tendered pursuant to s 93A. [18] The appellant, then 66 years old, testified at trial. He denied committing the alleged offences. He said that shortly before Christmas 2012, he had been diagnosed with prostate cancer. He had had a number of biopsies and a cystoscopy. 6 He described the latter as a medical procedure in which a camera was passed up his penis to check for cancer. 7 [19] The appellant s general practitioner gave evidence in the defence case. He confirmed the diagnosis in 2012, that biopsies were taken on 30 November 2012, that a cystoscopy was carried on 20 December 2012, and that radiation therapy had followed in March and April In cross-examination, the doctor said that the appellant had never complained of erectile dysfunction. 9 [20] The appellant gave evidence first in the defence case. He also called his wife and stepson, J, as witnesses. In cross-examination, the wife denied that the children, S and P, stayed overnight at the appellant s residence during the Christmas 2012 period. 10 J was not in a position to make a similar denial. 11 Grounds of appeal [21] The appellant relies on the following two grounds of appeal: 1. The learned trial judge erred in not directing the jury in terms of Robinson v The Queen The prosecutor impermissibly suggested in her address to the jury that defence witnesses had colluded in giving evidence, in circumstances where that proposition had not been put to any of them by her in crossexamination, thereby occasioning a miscarriage of justice. [22] It is convenient to consider each ground of appeal separately. Ground 1 [23] After the conclusion of the defence case, defence counsel submitted that a Robinson direction should be given to the jury in the course of the summing up by the learned 2 Exhibit 1. 3 Exhibit 2. 4 Exhibit 3. 5 Exhibits 5 and 7. 6 AB139 Tr2-42 ll AB140 Tr2-43 ll AB173 Tr4-2 l6 AB179 Tr4-8 l41. 9 AB181 Tr4-10 ll AB200 Tr4-29 ll AB209 Tr4-38 ll [1999] HCA 42; (1999) 197 CLR 162.

5 5 trial judge. A number of features were identified by counsel as warranting such a direction: that the appellant had not been a part of the lives of S and P from November 2013, yet the complaint was not made until April 2015; that the first complaint was made by S to D, and not to her mother; and that there was inconsistency between S s account given to D and her evidence by way of statement to police with respect to the offending witnessed by P. 13 [24] The learned trial judge declined to give the directions sought. His Honour said: 14 Well, I don t see anything in this case, Mr Lynch that would cause me to think that a Robinson direction is necessary. The matters that you ve just raised don t seem to me to fall within the usual parameters for a Robinson direction. [25] Appellant s submissions: The appellant referred to the discussion of the requirement to give a Robinson direction in R v Reynolds. 15 The Robinson direction was there described as having a special and exceptional nature such that, generally, it is only required in circumstances where the factual matrix gives rise to a perceptible risk outside the ordinary experience of the jury. To put it another way, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community. 16 [26] The appellant then submitted that there were several peculiar or exceptional factors which prejudiced the appellant s entitlement to a fair trial. Because of them, the direction sought ought to have been given. [27] In written submissions, the appellant referred to the following factors. 17 First, for Counts 1 to 5 and 7 to 9 there was some evidence that S may have been in the twilight state between being fully asleep and fully awake at the time of the alleged offending. Second, the broad timespan within which the offending was alleged to have occurred, made defending the charges more difficult. The jury may not have been alert to that. Third, for Counts 1 to 5, 10 and 11, the offending was alleged to have happened in very close proximity to the appellant s wife. S said that the appellant yelled at P as Counts 1 to 5 were being committed, yet the prosecution did not allege that the wife was aware of the offending. [28] The fourth factor was inconsistencies in S s version of events. These were S s apparent willingness to spend time with the appellant after the initial offending allegedly occurred; S s failure to mention the Count 6 offending in her initial police interview; and that in respect of the offending alleged in Counts 7 to 9, S changed her account as to whether P was watching a DVD as it occurred. [29] The appellant submitted that despite differences between the appellant s case and that of the offender in Robinson, there were a number of marked similarities shared by them. In light of the latter, the direction sought was appropriate AB223 Tr4-52 ll AB224 Tr [2015] QCA 111 per Carmody CJ at [36] [41] (Fraser and Gotterson JJA agreeing). 16 At [39]. 17 Appellant s Outline of Submissions ( AOS ), paras Appeal Transcript ( AT ) 1-7 l45 AT1-8 l2.

6 6 [30] Respondent s submissions: The respondent identified significant differences with the factual matrix in Robinson. They related to the respective ages of the complainants; that in the appellant s case, numerous offences were alleged, not just one; that those offences were described in more detail than in Robinson; and that the alleged offences occurred within a family situation where there was continuing contact. [31] It was significant, the respondent submitted, that there was corroboration by P for certain of the offending alleged by S. In Robinson, there was no corroboration. As well, there was no suggestion that the appellant had been forensically disadvantaged by any delay in reporting the offending. The defence was able to call two family members as witnesses. [32] The respondent acknowledged that there were inconsistencies in the prosecution evidence. However, it pointed to detailed directions that were given to the jury with respect to them. Contradiction between the prosecution evidence and that of the defence witnesses would have been obvious to the jury. In addition, the jury had been directed with respect to the two motives to lie which the defence had attempted to attribute to S. 19 [33] The respondent submitted that allowing for the directions that were given, there was no need for a Robinson direction. The appellant had not identified any peculiar or exceptional feature of the case that necessitated it. [34] Discussion: To a considerable degree, the appellant s case seeks to analogise the factual matrix of his case with that of Robinson. In that case, a male accused was convicted at trial of twice having unlawful anal intercourse with a child then under 12 years of age. The child, a boy, was then eight years old and the accused, 19 years of age. The offending was alleged to have occurred one night in a garage in a simulated junior scout camp. There were no witnesses to the alleged offending. The child told his mother three years later. At trial, the judge mentioned the absence of earlier complaint in his summing up but gave no warning, and made no other comment, about the nature of the prosecution case. [35] The principal issue in Robinson concerned the meaning and effect of s 632 of the Criminal Code (Qld). The High Court s reasoning concluded with the following observations: 19 AB241 Tr1-9 ll [24] In the present case there would have been no difficulty in framing a warning which did not transgress the prohibition in sub-section (3). [25] As the dissenting judgment in the Court of Appeal pointed out, there were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant's evidence as to whether penetration occurred. A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant,

7 7 about the appellant's conduct. There was no threat, and no warning to the complainant not to tell anyone. The complainant and the appellant maintained a harmonious relationship. There was no suggestion of any earlier or later misconduct by the appellant towards the complainant. An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on. Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant. [26] Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances. The appeal was allowed and a new trial was ordered. [36] The ultimate question for this ground of appeal is whether there were particular features of the case that demanded a Robinson direction. For the reasons which follow, the features referred to by the High Court in paragraph 25 of its reasons do not, in my view, provide a strong foundation for reasoning by analogy to a conclusion that such a direction or warning was demanded in this case. [37] Features that significantly differentiate this case from Robinson include the one incident of offending in it contrasted with the five in the present case, the significant difference in age between the eight year old complainant in Robinson and S who was 12 and then 13 years old at the time of the alleged offending, and the former s suggestibility. Unlike Robinson, here there was corroboration by a witness, P, of some of the alleged offending. Further, any delay in complaint had not impaired the defence case in that both the appellant s wife and J were available to be called at witnesses. [38] Moreover, some superficially apparent similarities do not have the same significance because of factual differences. That there was no threat by the appellant to S not to tell and that there was a harmonious relationship between them thereafter did not have the curiousness about them that they had in Robinson. S s mother and J were in a relationship. In all likelihood, S would have wished to maintain harmony in that relationship and to that end neither tell her mother of the alleged offending nor disrupt her own relationship with the appellant. Thus, it was not apparently necessary for the appellant to threaten S in order to keep her quiet. [39] As well, the delay in complaint did not have the same consequences for lack of opportunity for medical examination. In Robinson, the penetration was penile, whereas, in the present case, it was oral and digital. [40] A similarity with Robinson is the inconsistency in some aspects of the prosecution case. In her second interview with Police, S described the offending which she said occurred late one night on a couch at the residence of the appellant and his wife. It

8 8 was in the September or December holidays. She and P were sleeping on the couch. S continued: 20 And he came to me, um then did the same thing, took my pants off, did that, um and then licked me out. And then he stood up and he's actually made me awake and um he's stood up in front of me, ah behind me, I mean, and s-, he sort of took his penis out and staying (sic) playing around with it. And he physically grabbed my hand and made me do it. And then (P) woke up and she saw him. And he sort of, like, got angry and pretty much yelled at her, saying go back to sleep. And she pretended to sleep. And then he's done that. Um and she's turned ar-, she's turned around. And then (the accused) has, like, grabbed my hand and made me st-, rub him still. And then he's leant over and he's um put it near my face. And then he wanted me to put it in my mouth. And I didn't want to. [INDISTINCT] he like, grabbed my jaw and has opened it and then has put it in. And I had to give him a blow job and [INDISTINCT]. [41] In cross-examination, S agreed that the wife would have been about two and half metres away. A curtain that was pulled separated her from the couch. 21 [42] It was this incident that S related to D. However, according to D, S told him that she fell asleep on the couch with P; that P saw the appellant touch her inappropriately, like fingering her ; that P pretended to sleep; and that S was told about it all the next morning. 22 Notwithstanding this significant discrepancy, the account P gave to Police was that S was awake when the alleged offending occurred. 23 [43] A second instance of inconsistency concerned whether P was operating a DVD player just before the alleged offending on the couch occurred. In her second police interview, S said that she was and then she turned it off. 24 However, in crossexamination, she said that P was sleeping and not watching a DVD movie. 25 [44] Thirdly, there was the circumstance that the Count 6 offending was not mentioned until the second police interview. 26 [45] In summing up, the learned trial judge drew the jury s attention to references to prior inconsistent statements in relation to a number of witnesses, to which counsel had referred in their addresses. His Honour said: 27 Now, you would recall that I said at the start of that direction when I spoke about a prior statement that is prior to giving evidence so I should draw your attention to this fact, even though it, I am sure, would be clear to you; in relation to (S) and (P) and (D), their police interviews were tendered before you as part of their evidence. You would recall the directions I gave you at the time in respect of that. If a child if one of those persons said something different to that 20 Exhibit 1 Tr14: AB AB31 Tr1-20 ll Exhibit 7 Tr2: AB403; AB73 Tr1-62 ll Exhibit 5 Tr5-7: AB Exhibit 1 Tr9: AB AB43 Tr1-3 ll Exhibit 1 Tr4: AB AB242 ll8-21.

9 9 which that person said in the pre-recorded evidence that is when they gave evidence in the courtroom that was pre-recorded then the direction that I just gave you as to its potential impact on the credibility and reliability of the witness, of course, has the same application. However, given that the police interview forms part of the child s evidence, the inconsistent statement contained within that interview does constitute evidence, but whether you accept that inconsistent statement as being an accurate account and a correct account of whatever it is about or not, or the weight that you give to it, are entirely matters for yourself. [46] The learned trial judge then read at length relevant passages from D s police interview and S s cross-examination. His Honour continued: 28 Now, the evidence of those witnesses in those conversations may only be used as it relates to the complainant s credibility. Consistency between whatever account that you are considering and the complainant s evidence before you in relation to each of the two complainants, is something you may take into account as possibly enhancing the likelihood that the testimony of the particular complainant is true. However, you cannot regard the things said in those out of Court statements as proof of what actually happened. In other words, evidence of what was said on those occasions may, depending on the view you take of it, bolster the particular complainant s credit because of consistency, but it does not independently prove anything. Likewise, any inconsistencies between an account from any of those conversations and the complainant s evidence may cause you to have doubts about that particular complainant s credibility or reliability. Whether consistencies or inconsistencies impact on the reliability of the complainant in question, is a matter for you. Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for you to consider in the course of your deliberations, but the mere existence of inconsistency does not mean that, of necessity, you must reject the complainant s evidence. Some inconsistency is to be expected because it is natural enough for people, who are asked on a number of different occasions in different circumstances at different times, to repeat what happened at an earlier time, to tell a slightly different version each time. But that is the restricted use that you can use the evidence of those witnesses in that regard. [47] In my view, the directions that were given with respect to inconsistency, particularly that between what D said S told him and what S said to police as to whether she was awake or asleep, were sufficient to alert the jury to the possibility of doubt as to S s credibility or reliability on that account. The starkness of the inconsistency was moderated, to some extent, by the support given by P to S s version in the record of interview that she was awake. That aspect warrants recognition in assessing the sufficiency of the directions that were given. 28 AB250 ll22-44.

10 10 [48] Those directions were sufficient also to address the inconsistency with regard to whether D was operating a DVD player and the omission to mention the Count 6 offending at the first police interview. Further, it would have been obvious to the jury that had the appellant yelled at P, then it might be expected that his wife would have heard a short distance away. No specific direction was required as to that. As noted, the learned trial judge also gave the jury directions about S having two potential motives to lie. [49] For these reasons, I am unpersuaded that there were particular features of this case that necessitated the giving of a direction of the kind described in Robinson in order to avoid a miscarriage of justice. The learned trial judge did not err in declining to give such a direction. This ground of appeal has not been made out. Ground 2 [50] In her closing submissions, the prosecutor submitted to the jury that they might approach the evidence of the defence witnesses with some caution. Their lack of openness and preparedness to make concessions was questioned. She said: 29 That absence of concessions is concerning. It does paint a concerning picture. Both are adamant that the only memory of the girls coming to the house on Christmas 2012 was for them to get ice cream, to have vegetables, and again, people remember some things. We all have different memories, but again, it was strange how both seemed to remember the exact details. The girls came over with the bikes, they had ice cream out the front, Wendy came over with the vegetables, who both seem to remember all the details. No one seemed to miss one bit of that narrative, and again, there is something about consistent narratives that is concerning because that isn t the human experience. People remember experiences differently. [51] The learned trial judge repeated the substance of this submission in the summing up. 30 No complaint was made by defence counsel about the submission. [52] Appellant s submissions: The appellant submitted that what the prosecutor put to the jury implied that the defence witnesses had colluded inappropriately. That impliedly accounted for the exactness as to detail in their recollections. 31 In oral submissions, the implication was put as one of engaging in some sort of conspiracy to give a false version. 32 [53] The appellant s complaint was that the prosecutor had not put to the defence witnesses that they had colluded in that way. In failing to do so, the prosecutor contravened the rule in Browne v Dunn. Out of fairness, the prosecutor should have provided the witnesses with an opportunity to explain perceived similarities in their evidence. 33 A miscarriage of justice had resulted. 34 [54] Respondent s submissions: The respondent identified as a problem with the appellant s submission that collusion could only have been put to a second defence 29 Addresses Tr64 ll AB319 ll AOS para AT1-9 ll AOS para Ibid para 29.

11 11 witness after the evidence of another defence witness had been first given. Until then, a high degree of similarity in the testimony would not have been observable. [55] Secondly, the respondent submitted that the prosecutor did challenge the appellant s wife and J on relevant issues. In particular, it was put to the appellant s wife that she had reconstructed memories to try to assist her husband as best she could. 35 J was questioned as to whether he had discussed his evidence with his mother before he gave it. 36 The evidence of these witnesses had been sufficiently challenged for the purposes of the rule in Browne v Dunn as it applies to the Crown in a prosecution. 37 [56] Discussion: Having considered the words used by the prosecutor, I am of the view that they gave rise to an inference that the defence witnesses may have discussed their recollections of events and that the similarities in their evidence could be accounted for by that. However, I do not regard the prosecutor to have implied that the defence witnesses colluded inappropriately, much less engaged in a conspiracy, to arrive at a concocted but false version of events which would form the basis of their evidence. The rule in Browne v Dunn, therefore, did not require that such a proposition be put to them. [57] It will be recalled that J was cross-examined as to whether he had discussed his evidence with his mother and that she had been cross-examined as to the genuineness of her recollections. The cross-examination that was undertaken was sufficient, in my view, for the prosecutor fairly to make the submission she did. I therefore conclude that this ground of appeal has not been made out. Disposition [58] Neither ground of appeal has succeeded. It follows that this appeal must be dismissed. Order [59] I would propose the following order: 1. Appeal dismissed. [60] BROWN J: I agree with the reasons given by Gotterson JA, and the order proposed by his Honour. 35 AB205 Tr4-34 ll AB209 Tr4-38 ll See, generally, R v Wilson [2014] QCA 350 per Holmes JA at [31] [34].