SUPREME COURT OF QUEENSLAND CITATION: R v S [2000] QCA 256 PARTIES: R v S (appellant) FILE NO/S: CA No 80 of 2000 DC No 80 of 1999 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction District Court at Mackay DELIVERED ON: 30 June 2000 DELIVERED AT: Brisbane HEARING DATE: 21 June 2000 JUDGES: Pincus JA, Davies JA, Thomas JA Joint reasons for judgment of Pincus and Davies JJA; separate reasons of Thomas JA, concurring as to the orders made ORDER: 1. Appeal against conviction allowed 2. Conviction set aside 3. New trial ordered CATCHWORDS: CRIMINAL LAW EVIDENCE EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS CHARACTER AND PREVIOUS CONVICTIONS ADMISSIBILITY IN CROSS-EXAMINATION JUDICIAL DISCRETION PARTICULAR CASES appellant accused of indecently assaulting young child in garage child's mother alleged appellant's wife impeded her discovery of child and appellant appellant's wife denied trying to do so or trying to warn appellant of their approach prosecutor allowed to cross-examine on prior charges did not result in any convictions whether evidence of prior charges admissible Evidence Act 1977 s 15 Attwood (1960) 102 CLR 353, cited Gipp (1998) 194 CLR 106, mentioned Kilbourne [1973] AC 729, mentioned Maxwell [1935] AC 309, applied P v The Queen (1993) 61 SASR 75, applied
2 COUNSEL: SOLICITORS: Sutton (1984) 152 CLR 528, mentioned R v Hasler; ex parte A-G [1987] 1 Qd R 239, mentioned R A Mulholland QC for the appellant T A C Winn for the respondent Bill Cooper & Associates (Mackay) for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] PINCUS and DAVIES JJA: The appellant was convicted, after a trial, of unlawful and indecent assault which was said to have occurred in July 1998. There is an appeal against conviction as well as an application for leave to appeal against sentence; it is unnecessary to deal with the latter proceeding. [2] The Crown case was that at the time when the offence was committed the appellant and the complainant, then aged five and a half, were in the garage of a house occupied by the appellant and his wife. It was said that the appellant pulled the complainant's pants down and put his finger or fingers in her vagina. The allegation was that the complainant was at the time in the open boot of a car. The complainant gave evidence that after this occurrence the complainant's mother and the appellant's wife, who is the aunt of the complainant's mother, arrived and helped to get her out of the boot. The mother's evidence was that at the time in question she was talking to the aunt when she realized the complainant was missing and asked the aunt where the complainant was. She said: "... we both went towards the garage, she went in first and wouldn't let me through and as we were getting to the garage she started talking louder and louder... then [the appellant] came racing around and stopped us from getting in". The mother said that she had to push her way through to get to her daughter and then both she and the aunt got her out of the car boot. The aunt's evidence was that she went with the mother to the garage and saw the appellant standing at the back of the boot, the complainant being in the boot. The aunt agreed that she and the mother lifted the complainant out of the boot. [3] Neither the mother nor the aunt gave evidence of noticing anything unusual about the complainant when she was removed from the boot; but the mother spoke of having at a later time seen redness in the area of the complainant's vagina and of receiving a complaint from her. The presently significant differences between the evidence of the mother and that of the aunt relate to the questions of obstruction of the mother in her attempt to go into the garage and warning the appellant of that attempt. When counsel mentioned to the aunt the mother's evidence that during movement towards the garage, the aunt spoke more loudly, she answered "I doubt that very much. Why would I do that?" The aunt denied that the mother would have had any difficulty in passing her and said in effect that she (the aunt) had no reason to suspect anything was happening in the garage. The appellant's evidence was that the complainant got herself into the boot of the car and that he committed no such wrongful act as was alleged. [4] The ground of appeal is that the judge allowed in evidence of other, similar, charges having been made against the appellant. The respondent contended that the judge
3 was correct in doing so, but conceded that if the admission of the evidence was wrong then the conviction must be set aside. [5] During defence counsel's examination of the aunt in chief, the prosecutor asked the judge for permission to cross-examine about other charges which had been laid against the appellant. She explained that in February 1998, a few months before the offence for which the appellant was being tried was committed, the aunt had given evidence in favour of the appellant (her husband) in relation to similar allegations. The prosecutor said: "So, I want to be able to put to her the fact that she didn't trust him with this child, and that if he was doing something to this child, she wanted to warn him so he wouldn't be caught because similar allegations were made of things of acts that happened in the garage in the trial beforehand". After a ruling by the judge in favour of the prosecutor, the aunt was asked in cross-examination about having raised her voice and obstructed the mother, as alleged by the mother. The aunt denied these suggestions and denied a further suggestion that she did not want her husband "to be seen or to be vulnerable in a position alone with - with a young girl." There was this passage in the evidence: "Come on,... you had concerns about - about the vulnerability of your husband being with - alone with a young girl? - Well, wouldn't you? Well, why is that...? - Well, there's no particular reason, is there?". [6] Then there was cross-examination about the previous charges, from which it emerged that the appellant had recently defended five charges of indecent dealing, involving another young girl. Two of the allegations related to indecent dealing in the same garage, the appellant being at the time alone with the child in the garage. It was established by the cross-examination that the appellant was found not guilty in respect of those two charges and that the jury failed to agree about three other charges. The prosecutor then again suggested to the aunt that she was "concerned about your husband being seen to be in a vulnerable position alone with the child in that garage area". She denied that. [7] The purpose of the cross-examination by the prosecutor about the other charges was to show that the aunt had a reason for raising her voice to warn the appellant of the approach of the mother and a reason for obstructing that approach. If the jury thought or suspected that the aunt tried to warn her husband, the appellant, and tried to obstruct the mother's approach to the garage, they could have been inclined to think that the aunt was attempting to save the appellant from being discovered in the course of committing another offence of the same kind as those on which he had recently been tried or, to put this more simply, that the aunt thought: "Oh, he's at it again". The chain of reasoning would be: (a) The aunt believed or suspected that the appellant had committed similar offences previously. (b) She thought that he might be in the course of committing another such offence. (c) Her attempt to warn and to obstruct the mother's approach were intended to protect the appellant, her husband, from detection.
4 [8] The jury should not have been tempted to adopt such a mode of reasoning. The appellant had been acquitted of the two previous garage charges and the jury had failed to agree on three other charges. It was said in the House of Lords in Maxwell [1935] AC 309, 320, that proof that a man had been charged with an offence is irrelevant. The passage goes on: "Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue - namely, whether the prisoner in fact committed the offence on which he is actually standing his trial". [9] In Attwood (1960) 102 CLR 353 at 359 the High Court explained that evidence of bad character of an offender is excluded "as a matter of policy, policy deeply rooted in principle". A further explanation of the reason for the exclusion of evidence of offences other than those charged is given in Kilbourne [1973] AC 729 at 756-757 quoted with approval in Sutton (1984) 152 CLR 528 at 545. [10] It was suggested, as we understood the argument, by counsel for the respondent, that the admission of the evidence in issue here could be defended on the ground that it was evidence only of charges, not convictions. In P v The Queen (1993) 61 SASR 75 a similar point arose. There, cross-examination of the accused on prior convictions was allowed under the South Australian provision corresponding to our s 15(2) and s 15(3) of the Evidence Act 1977. In holding that the judge erred in permitting this to occur, King CJ remarked: "It would be obvious that the disclosure would be so prejudicial to the fair trial of the action that any marginal bearing that it might have upon the credibility of the appellant as a witness would fade into insignificance. To my mind, therefore, the cross-examination as to that conviction ought not to have been allowed. I would have said that even if it had not been subject to appeal at the time of trial. But the fact that a conviction is the subject of a pending appeal is, itself, an overwhelming reason why a Crown Prosecutor should not cross-examine upon it,... ". (80) [11] So much more, then, must the fact that there has been no conviction at all but merely charges, some resulting in acquittal, be a reason against letting in evidence of the kind in question here. [12] King CJ referred to the "marginal bearing" of the evidence being considered on the credit of the accused; here, the evidence was adduced not in cross-examination of the accused but in cross-examination of another defence witness. We have discussed above the way we think the jury might have taken it, but it is necessary to note that the learned primary judge allowed admission of the evidence on a different basis: "[The aunt] was aware of the allegations that indecent dealings had been made against [the appellant] so recently in the past. Some when he was alone with a child in the garage. Even if those allegations were totally false, it would be natural for a wife to be
5 concerned that her husband might expose himself to any further such situations; that he not leave himself open to them, by being alone". And the judge gave a direction to the jury, along these lines, explaining the relevance of the evidence. [13] The case has not to be determined on the basis that the damage to the appellant's chances of acquittal was limited to the possibility that the jury might, for the reason assigned by the judge, doubt the credit of the aunt. The risks were two: first, that the jury would tend to think that the appellant had a history of committing similar offences and, secondly, that they would tend to think that the aunt, knowing of that history, was trying to protect the appellant against the possibility of being discovered in the commission of another such offence. [14] The rule against attempting to prove the commission of a charged offence by evidence of the commission of others is subject to some exceptions, the three most important of which are the "similar facts" rule, s 15 of the Evidence Act 1977 and the "guilty passion" rule discussed in Gipp (1998) 194 CLR 106. None of this is or could be relied on here. Any relevance which evidence of the other charges might have had in determining the aunt's credit was swamped by the danger that the evidence would prejudice the jury against the appellant, on the bases mentioned above. Nor is the verdict saved by the circumstance that at the one stage the defence might have contemplated calling evidence about the other charges. [15] The appeal must be allowed, the conviction set aside and a new trial ordered. [16] THOMAS JA: The relevant facts are set out in the joint reasons of Pincus and Davies JJA with which I respectfully agree. [17] The questions which the Crown Prosecutor wished to ask in cross-examination of a defence witness (Aunt Mary) were prima facie allowable questions directed to her credibility 1. They were directed towards showing that she had a motive to protect her husband from surveillance. A Crown witness had described obstructive conduct by Aunt Mary consistent with her having fenced off her husband from possible discovery, but Aunt Mary denied this in her evidence. The position of the cross-examiner was only strengthened by the witness' rhetorical answers on a number of occasions "Why would I do that?". Questions designed to show a convincing reason for Aunt Mary s allegedly odd conduct were prima facie proper questions for the cross-examiner to pursue. It is unnecessary to determine the further question whether the evidence could be regarded as a truly collateral issue such as bias of the defence witness, or as a circumstance that in combination with other circumstances might be probative, because in any event the court would have a discretion 2 to exclude such questions on the ground that their prejudicial effect strongly outweighed their potential probative value. [18] The problem in pursuing such a line of cross-examination was that it involved the necessary adduction of a preliminary fact that the accused had been charged with five similar offences, two of them in the same garage. Such evidence would necessarily come before the jury as a collateral fact irrespective of whether Aunt 1 2 Hally v Starkey & Anor ex parte Hally [1962] Qd R 474, 478. R v Hasler ex parte Attorney-General [1987] 1 Qd R 239, 243-244, 248-249, 251, 258-259.
6 Mary agreed that it had affected her conduct. The serious prejudice from evidence of similar criminal charges having been laid is inescapable. By contrast its "probative value" was essentially an indirect discrediting of a witness who was describing surrounding circumstances. The prejudice from permitting the questioning was very much greater than any probative value that could be added to the prosecution case by permitting the questions. The authorities concerning the judicial discretion to exclude logically probative evidence that will also disclose the fact of an accused's conviction of other offences are usefully collected in R v Hasler ex parte Attorney-General 3. The present is a clear example of a case where the true probative value of the evidence was indirect and of little value compared with the extreme prejudice that was likely to result from illegitimate propensity reasoning. [19] I agree that the appeal must be allowed. 3 [1987] 1 Qd R 239, 243-244, 248-249, 251, 258-259.