JST v Queen [2001] FCA 1673

FEDERAL COURT OF AUSTRALIA

JST v Queen [2001] FCA 1673 CRIMINAL LAW – practice and procedure – trial – sexual offences - multiple counts – directions to jury – direction deficient as to separate consideration of counts – miscarriage of justice – appeal upheld. Sutton v The Queen (1983-84) 152 CLR 528, applied De Jesus v The Queen (1986) 61 ALJR 1, applied R v Markuleski [2001] NSWCCA 290, considered R v Tran [2000] FCA 1888, cited M v The Queen (1994) 181 CLR 487, cited Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, applied JST v THE QUEEN A 37 OF 2001 WILCOX, HIGGINS & DOWSETT JJ 6 DECEMBER 2001 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 37 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JST

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: WILCOX, HIGGINS & DOWSETT JJ

DATE OF ORDER: 6 DECEMBER 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The conviction and sentence in respect of count 1 of the indictment be quashed and, in lieu thereof, a verdict of not guilty be entered in respect of the said count. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 37 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JST

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: WILCOX, HIGGINS & DOWSETT JJ

DATE: 6 DECEMBER 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 The appellant was arraigned upon, and pleaded not guilty to, the following counts: (1) That between 1 October 1980 and 1 August 1982 he assaulted the complainant and at the time of doing so committed an act of indecency upon her, she then being under the age of sixteen years; (2) That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years; (3) That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years; (4) That between 1 July 1985 and 26 September 1985 he attempted unlawfully and carnally to know the complainant, his daughter, who was then between the ages of ten and seventeen years; and (5) That on or about 7 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years. 2 The learned trial Judge directed a verdict of not guilty on count 3. The jury returned verdicts of not guilty on counts 2, 4 and 5 but convicted on count 1. 3 The complainant, the appellant's daughter, was born on 7 October 1971. She was about nine years old at the time the offence referred to in count 1 was alleged to have occurred. 4 The trial occurred in May 2001, by which time the complainant was twenty-nine years of age. The complainant's mother (Ms D) was a Crown witness at the trial. She and the appellant had been married but separated in October 1985. This appears to have been shortly after, and perhaps as a result of, the alleged incident which was the subject of count 4. Ms D was the only Crown witness as to counts 1 and 4. The complainant was the only Crown witness as to counts 2, 3 and 5 which she first reported to the police in June 1998. Ms D presumably spoke to the police at about the same time. 5 Concerning count 1, Ms D said in evidence: "I recall an incident, it would have been around October/November 1980, very shortly after (the complainant's) birthday, when I was in the kitchen doing something one evening and I noticed my husband … at the time come out with (the complainant) from the hallway and she was naked, having just had a shower … and I wondered why he had her out in the – it was in the family room sort of, adjoining the kitchen. And (the complainant) was very uncomfortable … . (The complainant) was making sounds indicating that she was distressed, and he was – particularly as he was instructing her to lay on the kitchen table … he was just saying to lie on to the table, and he asked her to lie on her back on the kitchen table. And I went to see what was happening. And he sort of said he was checking to see if she was clean after she had her shower, and I said, "Well, she's old enough to know how to clean herself." … Well he said it was only his responsibility to check that she was clean, and he pushed me away and got very abusive, and spoke abusively to me, and said that it was none of my business, that it was his responsibility to do this. … And he then proceeded to check (the complainant). … Well, she was laying naked on her back, and he started checking with her ears and her face and all down her body, and as he got to her genital area, around the legs he was making her spread her legs so that he could have a look at the genital area, … He put – he placed his hands like both hands one either side of the genital area and actually spread the area apart, and said to me that he was checking, and she wasn't clean, and trying to make me have a look to see that she wasn't clean. … Well, I didn't – I didn't look very closely, … I didn't - wasn't comfortable with looking at her … . I did look, I did look, and I didn't notice anything in particular … He – immediately after that he insisted that she was dirty and made her go and have another shower." 6 As to count 4, Ms D recalled waking up in the middle of the night and hearing thudding or banging noises. She went into the complainant's bedroom and saw the appellant on the bed, naked on top of the complainant. She screamed. Ms D said in evidence: "He got off the bed really fast, coming at me in a rage, and pushed – and saying things like, "This isn't what you think it is," and he pushed me out into the hallway, and just thumped and kicked and punched and pushed me all the way down the hallway until I was stuck into a corner, and I can – and I remember laying very, very still in the corner of this hallway hoping that he would stop kicking and thumping and … ." Shortly after this incident the appellant and Ms D separated. 7 The appellant denied both these incidents. He said he had never examined the complainant's genital area in the way described by Ms D. He was asked: "Was there any occasion that you are able to tell the jury about where you did in fact check to see if she was clean after a shower?" 8 The appellant replied: "I can only recall one occasion when she first started showering. She had come out after her shower with her pyjamas on and in her playing around I happened to notice that around her ankles it was quite dirty … . I said, "Looks like you're not washing properly around the parts that are hard to get to. Go back and clean that up and try to remember in the future to do it properly."" 9 In cross-examination he was asked about the incident alleged in count 1. The following is a summary of the cross-examination: "You, so I understand, you denied point blank ever doing the type of examination your wife gave evidence about? - I do. And you'd agree that such an examination would be an improper thing for a father to do to his daughter? - No. You wouldn't agree with that? - No. I'm talking particularly about the examination of the genitals. You wouldn't think that that's an improper thing for a father to do? - It would depend on the circumstances. What about if the mother was present? Would you think its more appropriate for the mother to do an examination of the daughter? - I would think it would be more appropriate, yes. Do you think the kitchen table would be an appropriate place to do it? - I don't know. Okay, so far as you're concerned that didn't happen? - That's right. But you yourself wouldn't necessarily characterize it as was described by your wife as something necessarily indecent?" 10 There was an objection to the question and the evidence continued: "What I'm asking you is, would you consider what (Ms D) described as an improper and decent thing for a father to do? - Yes, in the circumstances she described. Okay, but not necessarily in all circumstances? - That's right." 11 The grounds of appeal are as follows: · That the trial Judge erred in failing to direct the jury that it must be unanimous as to the basis upon which it found the appellant guilty of count 1. · That the trial Judge erred in failing to direct the jury that since the only evidence supporting the prosecution case in respect of count 1 came from Ms D, it should carefully scrutinize her evidence. · That the trial Judge erred in failing properly to direct the jury regarding the delay in making a complaint. · That the trial Judge erred in failing to direct the jury that it should consider each count separately and that the evidence of the complainant regarding sexual offences allegedly committed against her by the appellant was not admissible in relation to count 1. · That the trial Judge erred in failing to direct the jury that, in considering count 1, it should take into account, when determining the credibility of Ms D, any reasonable doubt it might have in respect of her evidence concerning count 4. · That the verdict in respect of count 1 was unreasonable. 12 On numerous occasions during the course of the learned trial Judge's charge to the jury, he enquired of counsel whether they required any redirections. Counsel for the appellant requested redirections on at least two occasions, and they were given. None of the matters complained of in the grounds of appeal was raised. As we have reached the conclusion that the appeal must succeed on the fourth ground, we will deal with it before considering the other grounds.