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R v Atkinson

 

[2019] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

R v Atkinson [2019] QCA 95

PARTIES:

R

v

ATKINSON, Allan Thomas

(appellant)

FILE NO/S:

CA No 120 of 2018

DC No 266 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 28 March 2018 (Robertson DCJ)

DELIVERED ON:

24 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGES:

Sofronoff P and McMurdo JA and Wilson J

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of indecent treatment of a child under 16 – where the jury was directed that they had to be satisfied beyond reasonable doubt that the appellant deliberately touched the complainant on the breast – where the appellant argues that it was not open for the jury to be satisfied beyond reasonable doubt because of inconsistencies in the complainant’s account made to preliminary complaint witnesses – whether it was open to the jury to be satisfied of guilt beyond reasonable doubt – whether the jury’s verdict was unreasonable or cannot be supported having regard to the evidence – whether the jury’s verdict was unsafe or unsatisfactory

Criminal Code (Qld), s 668E(1)

Evidence Act 1977 (Qld), s 21AK, s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

M J Copley QC, with D L Crews, for the appellant

C N Marco for the respondent

SOLICITORS:

Fowler Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Wilson J.
  2. [2]
    McMURDO JA:  I agree with Wilson J.
  3. [3]
    WILSON J:  On 28 March 2018 the appellant was convicted, after a trial, of one count of unlawfully and indecently dealing with a child under 16 years on 20 June 2015.
  4. [4]
    The prosecution case was that the appellant touched the complainant on her breast with his hand. The jury was directed that they had to be satisfied beyond reasonable doubt that the appellant deliberately touched the complainant on the breast before they could convict. The defence case was that the appellant did not touch her breast, and if there had been any contact, it was confined to a hand on her shoulder.
  5. [5]
    Notwithstanding the complainant’s direct evidence that the appellant touched her breast, the appellant contends that it was not open for the jury to be satisfied that he did do so because of inconsistencies in the complainant’s account made to preliminary complaint witnesses.
  6. [6]
    The issue is whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond a reasonable doubt.[1]

Unsafe and unsatisfactory verdicts

Legal principles

  1. [7]
    In relation to the appellant’s contention that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, such that the verdict is unsafe or unsatisfactory, the question for the Court is whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[2]This Court must undertake its own independent assessment of the evidence,[3]both as to its sufficiency and quality,[4]allowing special respect and legitimacy for the jury’s verdict.[5]
  2. [8]
    But in answering that question, the Court must not disregard the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses; on the contrary, the Court must pay full regard to those considerations.[6]A court of criminal appeal is not to substitute trial by an appeal court for trial by jury.[7]
  3. [9]
    This was not a lengthy nor complex trial. The evidence took less than a day. Counsel’s addresses then followed and the trial judge completed his summing up on the morning of the second day. Before the jury retired to consider their verdict, they requested to hear the complainant’s evidence and cross examination again. Then after approximately half an hour of deliberation, the jury requested assistance from the trial judge on the issue of accident; about ten minutes later the jury returned with a guilty verdict. The trial was over before lunch on the second day.

The complainant’s evidence

  1. [10]
    The complainant was 14 years of age at the time of this offence. Her evidence-in-chief was given pursuant to section 93A of the Evidence Act 1977 (Qld) and her cross-examination was pre-recorded pursuant to section 21AK of the Evidence Act 1977 (Qld).
  2. [11]
    The complainant said that she went to the beach with her sisters CT and AT. They all went swimming. The complainant felt sick whilst in the water and sat on her own on the beach. As she was putting sunblock on her legs, she noticed that a man was watching her.
  3. [12]
    The complainant said that she first noticed the appellant because he kept on coming closer towards her. There is no dispute that this was the appellant.
  4. [13]
    The appellant then sat down next to the complainant and said, “I was looking at you surfing before”. The appellant then started asking questions such as “so, do you come here often?  Are those your sisters?  Are you a good surfer?”  The complainant did not respond.
  5. [14]
    During the section 93A interview the complainant was adamant that the appellant touched her breast. She saw that the appellant “start[s] like grabbing [her] shoulder, and goes down on to [her] boob” and then said “Um, I’m going now. Do you want me to take you home?”
  6. [15]
    The complainant said that she was “freaked out”, crying and couldn’t get any words out. She said that she told the appellant “get away from me. I don’t feel comfortable with this. I don’t know you. Leave me alone.”  The appellant responded by saying “fine, I was just trying to be nice”, before pushing her on her shoulder and walking off.
  7. [16]
    The complainant said that the appellant said “do you come here often?”, “you should teach me how to surf some time” and then later said “Well I’m going home now, so did you want me to drop you home.”  That is when she said she “freaked out”, the appellant then “grabbed [her] shoulder and starting moving down to [her] boob”, and she just cried. The complainant said the appellant had his hand on her left shoulder for “like two seconds”, then moved his hand down to her breast where it remained for “about three seconds”, before she said “Okay, I don’t know you. I don’t feel comfortable. Leave me alone.”  The appellant said “I was just trying to be nice”. He pushed the complainant and walked off.
  8. [17]
    During the section 93A interview the complainant demonstrated where the appellant touched her: on her breast. The complainant gestured from her shoulder towards her breast.
  9. [18]
    The complainant ran down to the water’s edge where her sisters were surfing and screamed out her sisters’ name and signalled to them.
  10. [19]
    The complainant’s sister, CT, came out of the water and ran over to her. The complainant said that she told her sister that “this creepy old man was touching me and it was grossing me out, and he tried to take me.”  Later on in the interview she said that she told her sister this man “was like grabbing me in places and stuff and I just told her everything that happened.”
  11. [20]
    The complainant was clearly distressed; she and her sister then ran up to lifesavers and her sister told them what happened.
  12. [21]
    The lifesavers took down a description of what had happened and then called the police.
  13. [22]
    The complainant gave no direct evidence in the section 93A interview about what, if anything, she told her sister AT about the incident, and she was not asked any questions about this in cross-examination.
  14. [23]
    Under cross-examination the complainant was emphatic about what the appellant did to her:

“Okay. So when you say that you were in a panic on the day, does that mean that your recollection of what occurs is a little different today than what happened on the time – at the time, because you were in a panic?---No, I didn’t exaggerate it. Like, I know that’s what happened. But obviously, I was struggling to verbalise it, because it was a pretty traumatic experience. But I still know what actually happened. Like, I was present there.

Okay. And what I suggest is that a person came over to you and was having a friendly conversation with you. Do you agree with that?---It was not a friendly conversation. A friendly conversation you don’t grab an underage girl’s boob … without her permission. How is that a friendly conversation?

Okay. So what I suggest is that the conversation was friendly, that a person – my client approached you and had a friendly conversation with you, asking, “When is it your turn to have a surf”?---That was never said, nor is that – a friendly conversation does not involve grabbing an underage girl’s boob.

What I suggest to you is that, after my client said he’d better go, that you started to cry?---Yes, I started to cry, because he assaulted me.

And you said, “I don’t think I’m supposed to be talking to you”?---No, I said, “I don’t talk to strangers.” I told him to leave me alone.

And that, perhaps, if he did put his hand on your shoulder, it was just to comfort you?---No, I started crying after he assaulted me.

He put his hand on your shoulder to comfort you?---And my boob.

“MR CREWS: And what I suggest to you is that he never touched your breast?---He did touch my breast.

And if he did touch your shoulder, you would’ve recoiled, at that point?---I would’ve what, sorry?

You would’ve moved away?---I was in a panicked state, okay? I was freaked out.

Do you want another break?---No, I’m fine. You can keep going.

You also told the police that, afterwards, that you were pushed. Do you remember saying that?---Yes, I was pushed, because I told him to leave me alone, and he was, like, “Fine, I was just trying to be nice,” and shoved me, like, pushed my shoulder.

And I suggest to you that you were never pushed either?---I was pushed. I was there. I was in the situation. I know what I’m talking about.”

Preliminary complaint – the complainant’s sister – CT

  1. [24]
    On 20 June 2015, the complainant’s sister, CT, said that she drove the complainant and her other sister, AT, to Alexandra Beach to go surfing. As they only had two boards between them, CT and AT went surfing while the complainant waited on the beach. They surfed for about 20 minutes, then CT saw the complainant running along the beach, waving her hands frantically and signalling for her sisters to come in. CT caught the first wave in to the beach and she found the complainant “frantic … shaking, crying … really really upset.”
  2. [25]
    CT asked the complainant if she was okay because she was shaking and didn’t look very well and the complainant said something “on the lines of someone had tried to touch her and she was really scared.”
  3. [26]
    CT gave more detail as to what the complainant told her:

“She just kind of described what had happened before. She was just sitting on the beach and he’d come up and tries to talk to her and then he just tried to touch her and, being so young, she was obviously really scared.”

  1. [27]
    CT took the complainant to the lifeguard tower where the complainant gave a brief description of the offender and one of the lifeguards then began searching for him. A little while later the police and the complainant’s parents turned up.
  2. [28]
    CT was not cross-examined.

Preliminary complaint – the complainant’s sister – AT

  1. [29]
    On 20 June 2015, AT said that she and CT went out surfing whilst the complainant stayed on the beach. About 15 or 20 minutes later, AT saw the complainant standing on the beach and motioning with her arms for them to come in.
  2. [30]
    AT saw her sister, CT, catch a wave in and talk to the complainant on the beach. They both then sprinted off to the lifeguard tower.
  3. [31]
    AT came in from the surf and met the complainant and CT at the lifeguard tower where she saw that the complainant was shaking and crying. The complainant looked very upset. AT had not seen her like that before.
  4. [32]
    The complainant told AT that a man had sat down next to her on the beach and was asking her questions about whether they were her sisters out in the water, and whether the complainant would like to go home with him.
  5. [33]
    The complainant told AT that “He touched me. He grabbed my arm and touched me on the boob.”
  6. [34]
    The complainant gave AT a description of the man, and AT and a lifesaver went to look for him. They couldn’t find anyone, so AT called her parents to let them know what happened.
  7. [35]
    In cross-examination, AT initially did not agree that she told Constable Nyhan that the complainant had told her that “the man moved closer towards her and touched her arm and grazed his hand over her breast.”  Later, AT conceded that it was “possible” she had told Constable Nyhan that.

Preliminary complaint – the lifeguard – Myles William Blackwell

  1. [36]
    Mr Blackwell was working as a lifeguard at Alexandra Headland on 20 June 2015, and was sitting in the lifeguard tower when two girls came over. He could see that they were distressed, with one comforting the other. The two girls were “very stressed” so Mr Blackwell asked them to take a seat and tell him what had happened “but they were sort of already talking bits of pieces.”
  2. [37]
    He said that the complainant:

“described a male who kept sitting closer and closer to … her on the beach, and she felt scared … that she wasn’t strong enough to stop him coming closer and closer … she gestured and … words came out over a period of time because she was so distressed and she was crying and very upset … [b]ut she made it quite clear that he then came closer and closer and then touched her, and she gestured where he touched her and it was sort of… [on the legs and … the breast area].”

  1. [38]
    Mr Blackwell indicated with his hand that the complainant had gestured coming from the top of the leg area up towards her breast.
  2. [39]
    Mr Blackwell called the police. The complainant was very distressed and CT was comforting her. The complainant gave Mr Blackwell a description of the person. He later went back and wrote everything down.
  3. [40]
    Mr Blackwell said that he made a statement to Detective Channelle Lanskey, in which he said that the complainant said something about “the male touching or attempting to touch her breasts.”  He said during cross-examination that he did not say the word “attempting” to Detective Lanskey.
  4. [41]
    Mr Blackwell was shown his statement. He then agreed that his statement said that he told Detective Lanskey that the complainant “said something about male [sic] touching or attempting to touch her breasts.”

Detective Senior Constable Hobbs

  1. [42]
    Detective Senior Constable Hobbs executed a search warrant at the appellant’s address on 26 June 2015 and that process was recorded. The appellant co-operated with the police and spoke freely and candidly. During the search some dark blue shorts, a shirt, a pair of sunglasses and a little folding beach chair were found. At the time of executing the search warrant at the appellant’s premises, Detective Senior Constable Hobbs said that he believed that the allegation was touching on the arm and breast, but not the shoulder.

Senior Constable Bernard Nyhan

  1. [43]
    After receiving a complaint that a girl had been assaulted by an elderly male Senior Constable Nyhan went to the lifeguard tower at Alexandra Headland. He conducted an unsuccessful search for an individual matching the relevant description when he was approached by the complainant’s sister, AT.
  2. [44]
    AT told Senior Constable Nyhan that her sister had been assaulted by an elderly male on the beach. AT said she was with her other sister swimming in the water whilst the complainant was sitting on the beach. AT saw the complainant waving for her to come back to the shoreline. AT then came in from the surf and spoke to the complainant who pointed out a male walking away from the beach towards Alexandra Parade.
  3. [45]
    AT told Senior Constable Nyhan that the complainant told her that the appellant began grazing the complainant’s arm and then he grazed over her breast.

The appellant’s record of interview

  1. [46]
    The appellant did not give evidence at his trial, however, he gave a version of events when interviewed by the police on 26 June 2015. This interview was played to the jury.
  2. [47]
    The appellant said that he saw a girl sitting on her own on the beach whilst her friends were surfing and decided to speak with her. He was watching the girl and her friends in the surf for about 20 minutes. He went and spoke to the girl on the beach because she looked a bit lonely. The appellant said he talks to “quite a few” girls on the beach and is looking for someone who would have a proper relationship and marriage. He said that sometimes he walks up to girls and finds out that they are probably way too young.
  3. [48]
    The appellant said he wouldn’t have known this girl’s age, but he did assume she would be “too young”. He guessed that the girl in question could have been anything from 14 to 17 years old. The appellant approached the complainant when she was sitting on the beach by herself. He stated that he may have knelt down next to the complainant on the sand and did notice that she was rubbing her legs with what he thought might have been sunscreen lotion. The appellant said the complainant was perfectly amicable and good to talk to. He said to her “what, have they gone and left you?  When do you get your turn at surfing?”, and as soon as he was about to leave and said “my name’s Alan, what’s yours?” she immediately broke into sort of whimpering.
  4. [49]
    The appellant said that the complainant had said “I don’t think I’m supposed to talk to you”, and the appellant asked “why’s that?  Is it because of my name?”, and she replied “I don’t know”, to which the appellant said “have a nice day, don’t be like that”, and walked off.
  5. [50]
    The appellant said he spoke to the complainant for about two minutes before she started whimpering. The appellant was asked whether he touched the complainant on the arm, to which he replied “I think not, at all. I think I didn’t even touch her, I think I did not touch her at all.”  He then said that if he did touch her it “would’ve only been, don’t worry, sort of thing, or something like it, but I don’t think I did.”  When the appellant was told that the allegation was he had touched her on the arm and also on her breast, the appellant said “absolutely not, mate.”
  6. [51]
    In relation to the allegation that he touched the complainant’s left shoulder with his hand, the appellant stated: “the only way that could’ve happened is, like I said, if I was, after she started whimpering and being a bit funny, then I might-, could’ve, as I was leaving I might’ve said don’t worry or something, take it easy or something.”  He said the allegation that he grabbed her breast was “absolute rubbish.”  He said there was a possibility he touched her in the context of trying to settle her down, but that he “definitely didn’t touch her breasts unless there was some sort of accident that I cannot imagine, because I would know, wouldn’t I? I would just know because, pretty young girl, I would know if my hand snicked her, probably.”  When asked whether he would remember if he touched a young girl on the breast, the appellant said “it would’ve been accidental if it, but I, I’d be, uh, ninety nine percent sure I didn’t. Ninety nine point nine percent sure that I didn’t, even … accidentally.”
  7. [52]
    The appellant said he was wearing black shorts and possibly a plain dark blue shirt, had sunglasses on, and was carrying a small beach chair.

The appellant’s submissions

  1. [53]
    The appellant submits that the complainant’s distressed condition is consistent with a frightening encounter with a man she described as “creepy”, who had missing teeth and who invited her to come away with him in his car.
  2. [54]
    The appellant submits that CT was the first person the complainant spoke to after the incident and her evidence of what the complainant said was, it may be concluded, always consistent; it was that the man had tried to touch her.
  3. [55]
    Accordingly, the appellant submits, in view of CT’s evidence, it was not open to the jury to be satisfied beyond reasonable doubt of guilt because it was not open for the jury to be satisfied that the complainant was reliable on the important detail of exactly where he touched her.

The respondent’s submissions

  1. [56]
    The respondent submits that the jury were not compelled to reject the complainant’s evidence that the appellant had touched her breast because of the preliminary complaint evidence given by her sister, CT. The jury need not have accepted CT’s evidence as accurate in view of the complainant’s own evidence of what she told CT.
  2. [57]
    The jury could also have regard to the qualification CT placed on the complaint evidence, that the complainant had said something “on the lines of”. The jury may have thought that CT’s use of the word “tried” was a manner of her speaking, as she also said that the appellant “trie[d] to talk to her” when the evidence was clear that the appellant had talked to the complainant. The evidence of the other preliminary complaint witnesses was otherwise consistent with the evidence of the complainant.
  3. [58]
    The respondent states that complainant’s immediate distress was capable of corroborating her account.
  4. [59]
    The complainant’s identification was not challenged. The complainant’s description of the appellant’s appearance and his clothing supported by the photographs buttressed her reliability.
  5. [60]
    The respondent also refers to the appellant’s statements against interest that supported the complainant’s evidence:
    1. The appellant accepted that he had been watching the complainant in the water.
    2. His observations accorded with the complainant’s evidence regarding her movements.
    3. The appellant admitted approaching the complainant when she was alone and believing she was 14 to 17 years of age. He readily conceded that he had looked for a romantic partner at the beach.
    4. The appellant also accepted that the complainant had become distressed in his presence but his conduct immediately prior was not reasonably capable of rendering explicable her distress.

Discussion

  1. [61]
    The complainant said that the appellant touched her breast whilst sitting next to her on the beach. She showed immediate distress in his presence and ran away towards the waterfront. The complainant then signalled for her sisters’ attention whilst they were surfing. CT, and indeed all the preliminary complaint witnesses, found the complainant to be in a very distressed state.
  2. [62]
    The complainant told CT that the appellant was “grabbing me” or “touching me”, which is consistent with her evidence of the assault.
  3. [63]
    However, CT said that the complainant told her that the appellant “tried to” touch her. The appellant’s counsel seized upon this inconsistency at the trial. The appellant’s counsel told the jury, in his closing address, that “this is a case that rises and falls on the credibility and the reliability of the complainant”, and “the preliminary complaint evidence is evidence which … affects the complainant’s credibility.”
  4. [64]
    Assessing the complainant’s credibility and reliability were matters for the jury. The jury accepted the complainant’s evidence and they were entitled to do so. The jury had the benefit of seeing, and hearing, all of the witnesses, and assessing all of the evidence. The jury was not compelled to reject the complainant’s evidence that the appellant had touched her breast because of the preliminary complaint evidence given by her sister, CT. She was cross-examined and was emphatic that the appellant touched her breast. The complainant’s own evidence of what she told CT was consistent with her evidence of the appellant’s assault upon her. Evidence of the other preliminary complaint witnesses was also consistent with the evidence of the complainant. All of the preliminary complaint witnesses gave evidence of the complainant’s distress, which was capable of corroborating her account.
  5. [65]
    It was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty of indecent assault against the complainant.
  6. [66]
    The appeal should be dismissed.

Footnotes

[1]R v Baden-Clay (2016) 258 CLR 308 at [66] per French CJ, Kiefel, Bell, Keane and Gordon JJ citing M v The Queen (1994) 181 CLR 487 at 494-495. See also MFA v The Queen (2002) 213 CLR 606 at [49]-[51], [56]; SKA v The Queen (2011) 243 CLR 400 at [21].

[2]R v Baden-Clay (2016) 258 CLR 308 at [65]-[66]. See also M v The Queen (1994) 181 CLR 487 at 494-495; MFA v The Queen (2002) 213 CLR 606; SKA v The Queen (2011) 243 CLR 400 at [20]-[22].

[3]Morris v The Queen (1987) 163 CLR 454 at 473; SKA v The Queen (2011) 243 CLR 400 at [22].

[4]Morris v The Queen (1987) 163 CLR 454 at 473.

[5]MFA v The Queen (2002) 213 CLR 606 at [59].

[6]M v The Queen (1994) 181 CLR 487 at 493.

[7]M v The Queen (1994) 181 CLR 487 at 494; R v Baden-Clay (2016) 258 CLR 308 at [65]-[66].

Close

Editorial Notes

  • Published Case Name:

    R v Atkinson

  • Shortened Case Name:

    R v Atkinson

  • MNC:

    [2019] QCA 95

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Wilson J

  • Date:

    24 May 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC266/17 (No Citation) 28 Mar 2018 Date of Conviction (Robertson DCJ).
Appeal Determined (QCA) [2019] QCA 95 24 May 2019 Appeal against conviction dismissed: Sofronoff P and McMurdo JA and Wilson J.

Appeal Status

{solid} Appeal Determined (QCA)