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R v Henningsen [2021] QCA 34 (5 March 2021)

Last Updated: 5 March 2021

SUPREME COURT OF QUEENSLAND

CITATION:	R v Henningsen [2021] QCA 34
PARTIES:	R v HENNINGSEN, Jason Paul (appellant)
FILE NO/S:	CA No 330 of 2019 DC No 2765 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 28 November 2019 (Koppenol DCJ)
DELIVERED ON:	5 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2021
JUDGES:	Fraser and McMurdo JJA and Boddice J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of two counts of rape and one count of indecent treatment – where two ‘preliminary complaint witnesses’ refused to give statements to police – where those ‘preliminary complaint witnesses’ did not give evidence at trial – where the complainant’s credibility at issue – where the trial judge directed the jury they could not speculate as to what absent witnesses would have said or reasons for their absence – whether the trial judge erred in directing the jury in this way – whether the alleged misdirection or non-direction led to miscarriage of justice Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2) Collins v The Queen (2018) 265 CLR 178;  [2018] HCA 18 , cited Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, applied R v Oliver [2020] QCA 76, cited R v PS (2016) 261 A Crim R 329; [2016] SASCFC 97, distinguished Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, distinguished
COUNSEL:	P K O’Higgins with A Mason for the appellant J A Geary for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent

• [1] FRASER JA: The appellant was found guilty by a jury of two counts of rape and one count of indecent treatment. He appeals against his conviction on the ground that the trial judge misdirected the jury as to the use they could make of the refusal of certain potential witnesses to provide witness statements to police and to give evidence at trial. The ground of appeal relates to “preliminary complaint evidence”, which is evidence admissible under s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) “of how and when any preliminary complaint was made by the complainant about the alleged commission of [a sexual offence] by the defendant”.
• [2] It is necessary to give only a brief summary of the case at trial. When the offences were alleged to have been committed in 2013 or 2014 the complainant was nine or ten years old. Her recorded statements in police interviews in 2016 and 2017 were in evidence at the trial, as was her pre-recorded evidence in July 2019 when she was 15 years old. The Crown case depended upon the jury accepting that the complainant’s evidence of the appellant’s offending conduct was honest and reliable. The complainant’s two brothers and her father gave evidence which the jury could find supported a material part of the complainant’s evidence, although there were inconsistencies within that body of evidence. The defence case, as it was put in cross examination, was that the appellant did not engage in any of the offending conduct.
• [3] The complainant gave preliminary complaint evidence to the effect that she told many people about the appellant’s sexual offending. Some of the people she identified gave evidence upon that topic. The complainant stated that she had told her two brothers and her father about the offences shortly afterwards. The complainant’s father gave evidence that she told him, or she told a friend of his who told him, that nothing had happened. (That friend of the complainant’s father was one of the two potential witnesses who did not give a statement to police or give evidence at the trial.) The complainant’s father also gave evidence that the complainant would not talk to him. Each of the complainant’s brothers gave evidence that the complainant did not talk to them about what had happened.
• [4] The complainant stated that before she spoke to police she had told various adults outside her family about the appellant’s offending. Some of those adults gave evidence of what the complainant told them. Four other adults identified by the complainant as persons to whom she had made disclosures did not give evidence at the trial. Statements to police by two of those adults were set out in admissions made by the Crown and the appellant.
• [5] A police officer gave evidence that the other two adults had declined to provide statements to police despite being asked to do so. The policer officer also gave evidence that she believed those adults could give relevant evidence. The ground of appeal relates to these two “potential witnesses”. No issue is raised in this appeal either about the direction relating to the people who had given statements or about other directions the trial judge gave concerning the preliminary complaint evidence adduced at the trial. The issue concerns the trial judge’s directions relating to the potential witnesses who had not given statements or given evidence at the trial.
• [6] When addressing the jury, the prosecutor referred to the delay of two or three years between the time of the alleged offences and when the complainant provided a statement to police. Relying upon the complainant’s evidence that she had earlier complained to various adults, the prosecutor submitted that the delay was not her fault, many adults in her life had failed her, and people to whom she had complained had not assisted her to bring her complaint to the attention of the authorities. Defence counsel submitted to the jury that the more likely scenario was that none of the people the complainant said she had told had anything that assisted. The prosecutor’s submission, that none of the adults in the complainant’s life helped her, was submitted to be in stark contrast with the very real possibility that the complainant did not tell them the things she said she had told them because they did not happen.
• [7] The trial judge directed the jury that statements by the complainant to other people were not relevant to prove what the complainant said had happened, but the jury might think that consistency between such statements and the complainant’s evidence enhanced the complainant’s credibility and that inconsistencies detracted from her credibility.^[1] The trial judge summarised the preliminary complaint evidence, drew the jury’s attention to relevant features of it, and identified inconsistencies within the complainant’s evidence and inconsistencies between it and other preliminary complaint evidence. Neither counsel sought any redirection.
• [8] On the day after the summing up concluded, the jury sent a note inquiring whether they could “give any weight to the evidence that has [been] admitted about the women who were supposedly told of the allegations having not turned up to give statements or testify”. (I will refer to this as “the first question”.)
• [9] The trial judge gave directions to the jury about the two people whose statements were the subject of admissions at the trial. The appellant disclaimed any issue about those directions. In relation to the two potential witnesses who had not given a statement to police or given evidence at the trial, the trial judge directed the jury that “it is impossible for you to assess their credibility and reliability, given that they are not here and were never here” and:

“the weight that you give what they might have said will depend upon your assessment of the complainant’s credibility and reliability because it is only the complainant who said ... [she had told those potential witnesses what had happened].”

The trial judge indicated to the jury that he would have a further discussion with counsel and might then give the jury further directions.

• [10] After the trial judge heard further from counsel and the jury were again brought into the courtroom, a juror asked whether the jury could “base an opinion surrounding the women who chose not to give statements or ... not to give evidence” and “infer from that that they have come to doubt the validity of the allegations”. (I will refer to this as “the second question”.)
• [11] Defence counsel submitted to the trial judge that it was appropriate to remind the jury of the submissions by the prosecutor and defence counsel in their arguments; whilst it was correct to direct the jury that they could not speculate about what evidence the potential witnesses might have given, the jury should be directed that it was for the jury to determine what, if any, weight should be given to the absence of such evidence; the jury could take into account and give whatever weight they wished in their deliberations to “the failure of that relevant information to be put before the court ...”. Defence counsel submitted that the absence of the evidence was relevant to an assessment of the complainant’s credit “because that potentially corroborative evidence ... by way of preliminary complaint is simply not before the court”. The prosecutor submitted that to direct the jury in those terms would be to invite speculation about what the evidence might have been if it had been given, inconsistently with the necessary direction that the jury should not speculate.
• [12] The trial judge directed the jury to the effect that they were not to speculate about what evidence the potential witnesses might have given or why they had not given evidence.
• [13] In R v PS,^[2] Nicholson and Lovell JJ (with whose reasons Parker J agreed) observed that “failure to hear evidence from the recipient [of a complainant’s preliminary complaint] may well affect the weight to be given to the complainant’s evidence” and “this can be dealt with by the trial judge giving an appropriate direction”. That observation was not necessary for the decision in that case.^[3] It appears to have been premised upon a conclusion that the prosecution had not complied with “an overriding duty to call relevant witnesses”.^[4] In the present case it was not submitted at trial or on appeal that the prosecutor did not fulfil her (qualified) duty of calling all witnesses “whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”.^[5]
• [14] As counsel for the appellant acknowledged, the trial judge was correct to direct the jury that they could not speculate about what the potential witnesses might have said if they had given evidence.^[6] Counsel also acknowledged the trial judge was correct in refraining from directing the jury that they could draw an inference from the failure of the prosecutor to call the potential witnesses to give evidence.^[7]
• [15] The appellant argued that the trial judge should have directed the jury that they could take into account the absence of those witnesses in forming a view about the complainant’s credibility. It was submitted that the failure to hear evidence from the potential witnesses may well have affected the weight to be given to the complainant’s evidence. The appellant submitted that the trial judge’s directions precluded the jury from reasoning that the absence of the potential witnesses left the complainant’s preliminary complaint evidence without support and, the case being finally balanced, the complainant’s evidence should not be accepted as proof beyond reasonable doubt as required by the Crown case.
• [16] The reference in the first question to “the evidence that [was] ... admitted about” the potential witnesses was the evidence of the police officer that she believed that they could give relevant evidence and they had declined to provide statements despite being asked to do so. The police officer’s opinion about the relevance of whatever evidence the potential witnesses might give was irrelevant. The appropriate directions described in [14] of these reasons compel the conclusion that the police officer’s evidence that the potential witnesses had declined to provide statements despite being asked by police to do so was also irrelevant.
• [17] The trial judge’s response to the first question, as qualified by his response to the second question, must have left the jury with the impression that they should not speculate about what the potential witnesses might have said if they had provided a statement or given evidence, so that the only evidence of any complaint by the complainant to the potential witnesses was the evidence given by the complainant. That was appropriate.
• [18] The second question sought guidance from the trial judge upon the question whether the jury could draw an inference from the choice of the potential witnesses not to give statements or evidence that they doubted that the complainant’s allegations were valid. Any opinion about the validity of the complainant’s allegations held by anyone other than the jury was irrelevant. The process of reasoning about which the jury asked was also inconsistent with the appropriate directions described in [14] of these reasons. The trial judge’s response to the second question was appropriate.
• [19] The trial judge’s directions did not preclude the jury from reasoning towards an acquittal in any way that was legitimately open to them. As the jury must have appreciated, one effect of the trial judge’s directions in response to the questions was that the jury could not speculate that the evidence the potential witnesses might have given would have supported the complainant’s evidence that she had complained to them about the appellant’s alleged offences. The trial judge’s directions did not preclude the jury from reasoning that, having regard to what defence counsel had submitted was the absence of detail in some of the preliminary complaint evidence and inconsistencies between some of the preliminary complaint evidence and the complainant’s evidence, the complainant’s unsupported preliminary complaint evidence, that she had complained to potential witnesses, should not be accepted.
• [20] One other argument advanced for the appellant should be mentioned. The appellant submitted that the submission by the prosecutor that many adults in her life had failed her was an illegitimate appeal to emotion. An alternative view is that the submission was open to the prosecutor upon the complainant’s evidence by way of an explanation for the complainant’s delay in reporting the offences she alleged to police. However that question might be resolved, it could not justify the trial judge in giving a direction to the jury of the kind articulated in the ground of appeal, which would allow the jury to draw an inference from the refusal of the potential witnesses to provide witness statements to police and give evidence at the trial. That necessarily would involve impermissible speculation.
• [21] The trial judge’s directions were appropriately responsive to the particular questions asked by the jury. I would hold that the ground of appeal is not established.
• [22] The appeal should be dismissed.
• [23] McMURDO JA: I agree with Fraser JA.
• [24] BODDICE J: I agree with Fraser JA.

^[1] See Collins v The Queen  [2018] HCA 18 ; (2018) 265 CLR 178 at 184  [15] : “Evidence of the making of a “preliminary complaint” given by the complainant, or the person or persons to whom the complaint was made, is received as an exception to the hearsay rule for the purpose of showing consistency of conduct [Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 472 per Barwick CJ].”

^[2] [2016] SASCFC 97; (2016) 261 A Crim R 329 at [75].

^[3] See at [68].

^[4] See at [76].

^[5] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674 (Dawson J), quoted by Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [18].

^[6] See Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [6] – [17] (Gaudron and Hayne JJ).

^[7] See also R v Oliver [2020] QCA 76 at [27].