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  • Unreported Judgment

R v F

 

[1998] QCA 196

COURT OF APPEAL

de JERSEY CJ

DEMACK J

CHESTERMAN J

CA No 119 of 1998

THE QUEEN

v.

F Appellant

BRISBANE

DATE 24/06/98

JUDGMENT

THE CHIEF JUSTICE:  The appellant was charged with the commission of four sexual offences on a child. He was convicted of one and acquitted of the others. The conviction on count 1 was of indecent dealing with a child under 14 in 1987. The Crown case was that the appellant, who is the complainant's uncle, told her - she was then eight years old - to touch his penis while he was in the bathroom toilet of her grandmother's unit. He then caused her to rub his penis up and down. The first of the acquittals on count 2 concerned an incident alleged to have occurred very shortly after that.

Following the events of count 1, the complainant alleged that she and the appellant went to a spare room at the unit. She said that the appellant sat down on the edge of a bed and told her again to touch his penis, which she again did, with the appellant then placing his hand over hers, as had occurred before, and again causing her to rub his penis up and down, as I say, similarly to what had occurred in the bathroom toilet.

The appellant relies on the acquittal on this count for a contention that the conviction on the former count is unsafe. The ground of appeal is expressed in these terms:  "The verdict of the jury on count 1 is unsafe and unsatisfactory."  Under the heading in the appellant's written submissions, "Why the verdict on count 1 is unsafe", the appellant says:

"There is no rational basis for different verdicts on counts 1 and 2, given the closeness in time, place and conduct involved. If the jury had a reasonable doubt as to the appellant's guilt on count 2, it must have had a similar doubt with respect to count 1, and the two verdicts cannot stand together."

That is the point which Mr Devereaux who has appeared this morning for the appellant has developed orally.

I want to refer now to the High Court's most recent affirmation in Gipp, an unreported judgment delivered on 16 June 1998 of the currency of the test as explained in M v. The Queen (1994) 181 CLR 487. At page 494 of M the majority confirmed the importance of having regard to the jury's primary responsibility for determining guilt and the advantage the jury enjoys in seeing and hearing the witnesses and Their Honours went on:

"If the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted then the Court is bound to act as to set aside a verdict based upon that evidence."

Where the basis for this ground has been particularised as here that of course tends to circumscribe the Court's inquiry although Gipp may indicate that if the record throws up other bases upon which the ground could arguably be developed the Court should have regard to them. But it is not necessary to take that approach further for the present because the appellant has in this respect clearly tied the ground to suggest an inconsistency between the verdicts.

Another aspect of the appeal will necessitate a somewhat broader consideration to which I will come shortly. As to this more specific aspect of the ground one notes at once the prima facie difficulty of contending that a verdict of guilty is unsafe because the jury has not been satisfied to the requisite degree of guilt on another albeit related charge. The point was made in the Victorian Court of Criminal Appeal by Justice Crockett in Celebicanin v. Nyira (1991) 53 A Crim Records 374 at 377:

"Undoubtedly it would ordinarily be more difficult to establish a case of repugnant verdicts when the argument rests upon contemporaneous acquittals and when the jury has produced a verdict of guilty said to be inconsistent with another verdict of guilty from the same jury. The latter rests upon a positive finding by a jury, the former means no more than that in a given case the jury simply was not satisfied of guilty to the requisite degree. Proof of repugnancy in such a case is not however impossible."

This Court took a similar approach in Stevens CA 149 of 1994 an unreported judgment delivered on 12 August 1994. Is there, one asks, any basis upon which the verdicts of guilty on count 1 but not guilty on count 2 may rationally be reconciled?  The appellant contends not, given the considerable closeness in time and place between the relevant events and the great similarity in the conduct allegedly involved.

The Crown does however point to a discrepancy in the complainant's evidence which apparently assumed some importance at the trial and may explain why the jury took this course. In relation to the second alleged incident the complainant admitted at the trial that she had previously told the Court that when she and the appellant entered the spare room the appellant at once sat down on the edge of the bed and started playing a guitar, rather, that is, than at once engaging in the indecency. When challenged about this at the trial the complainant said that the appellant had in fact started playing the guitar later upon her departing following a call from her brother and she claimed that her earlier evidence had been mistaken. I think it is clear that this shift in the complainant's evidence with respect to count 2 may well have led to the jury's not being satisfied beyond reasonable doubt on that count notwithstanding its satisfaction on count 1, and that was of course rationally open to it. This first aspect of the ground therefore cannot be sustained in my view.

The second aspect of the ground was formulated in the appellant's written outline of submission as follows:

"The verdict on count 1 is unsafe taking into account it relied on the unsupported account of the complainant as to an event which occurred on an unknown date in 1987 when she was eight years old and about which no complaint or statement was made until 1996 some nine years later."

Those circumstances - a suggested lack of support for the complainant's account, her tender age and the absence of timely complaint - do not of themselves necessarily render the verdict unsafe, as that statement of the ground would appear to assume. I note also with relation to that written statement of the ground, the overstatement as to there being no supporting evidence, an aspect to which I will return. But notwithstanding the untenability of the contention as expressed that way, it does necessitate this Court's looking more generally at the conviction to ensure that it was reasonably open in the context of the sort of approach discussed in M and adding in as well Mr Devereaux' mention this morning of certain aspects of vagueness and inconsistencies to which he has orally referred.

May I mention in a preliminary way however that counts 3 and 4 charge rape, the former count in the early part of 1991 and the latter in the first half of 1993. On each of those counts of course the appellant was acquitted. I offer some particular observations now on the case with relation to count 1 and the course of the trial.

The appellant gave evidence that the touching alleged in this count did not occur and that the alleged incident was referable to a situation in which the complainant saw the appellant masturbating in the bathroom. This was put to the complainant and she denied it. The defence emphasised the complainant's failure subsequently to complain in a timely way, which she however put down to threats by the appellant and to her being a quiet person in any case, ashamed rather than angry about the matter.

The learned Judge properly reminded the jury about the possible significance of those matters. The Crown case against the appellant gained some arguable support from the evidence of C the appellant's cousin. C said that in 1996 she told the appellant that the complainant had told her mother "what happened" whereupon the appellant started crying. The appellant then told C that he had been molested as a child at Palm Island. C responded, "That doesn't give you the right to do what you did to M" and the appellant agreed. He later asked C to tell the complainant that he was sorry for what he had done and that he would never deny what he had done to M.

In the appellant's own evidence he claimed that what he said referred to a complaint of sexual abuse made to him by the complainant involving a person named James. The appellant claimed that he believed that it was about that the complainant had spoken to her mother, using that to explain his own tears. The appellant denied having made any admission of sexual misconduct on his own part towards the complainant.

The learned Judge left C’s evidence to the jury on the basis that if accepted and interpreted as the Crown urged that evidence might tend to support the complainant's account. The Judge fully explained to the jury the competing positions taken by the Crown and the accused with relation to that evidence.

No criticism is made of the summing-up which was to my mind comprehensive and balanced and stressed the need for care and drew attention to all major considerations. The jury returned at 9.34 a.m. one day, they returned at 11.16 a.m. the same day asking for a copy of the full transcript of the trial.

The learned Judge properly explained that he could not provide the transcript but offered to re-read the evidence in its entirety if desired.

At 2.05 p.m. the jury returned again asking that the evidence of the complainant be re-read which is, of course, consistent with their wish carefully to consider the complainant's evidence consistently with the various admonitions given to them by the learned Judge in the course of the summing-up. The evidence was then re-read. The jury eventually retired at 2.24 p.m. and returned with its various verdicts at 3.04 p.m. In developing in writing the contention that the verdict is unsafe, the appellant pointed to some other matters including the omission from the complainant's statement to the police of any mention of the appellant's threat and the circumstance that the complainant continued to see the appellant after the alleged offences.

As to the former, the complainant gave evidence that she did inform the police of the threats and that the absence of any mention of that matter from the statement was the result of the neglect of the police officers. As to the latter circumstance, the complainant gave explanations including that she was accompanied on those occasions.

Mr Devereaux added orally this morning reference to some aspects on which the complainant had been vague in her evidence relating, for example, to the mode of dress of the appellant.

The assessment of the evidence on all of these matters was, of course, for the jury. The jury was properly instructed. None of them leaves to my mind any residual concern which could contribute to a view that the guilty verdict return on count 1 should be regarded as unsafe.

Having reviewed the evidence and the summing-up in the manner required by M and the other cases dealing with this matter, I am not satisfied that the verdict of guilty on count 1 is unsafe or unsatisfactory.

The passage quoted earlier from M emphasises that the Court should, when considering this type of ground, give appropriate weight to the advantage enjoyed by the jury, in this case, apparently substantial.

The jury, properly instructed, appears to have gone about its task of assessing the evidence of the complainant carefully in the context of all of the evidence in the case including, of course, the appellants, and the jury has been discriminating in its approach.

I note, finally, that the learned Judge did give the jury orthodox directions about the possibility of disparate verdicts on the respective counts. For these reasons, I would dismiss the appeal.

DEMACK J:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed.

...

THE CHIEF JUSTICE:  I order that the application for leave to appeal against sentence be dismissed.

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Editorial Notes

  • Published Case Name:

    R v F

  • Shortened Case Name:

    R v F

  • MNC:

    [1998] QCA 196

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Demack J, Chesterman J

  • Date:

    24 Jun 1998

Litigation History

No Litigation History

Appeal Status

No Status