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R v Manning

 

[2020] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Manning [2020] QCA 14

PARTIES:

R

v

MANNING, Gregory Thomas

(appellant/applicant)

FILE NO/S:

CA No 119 of 2018

DC No 305 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 16 April 2018; Date of Sentence: 24 April 2018 (Devereaux SC DCJ)

DELIVERED ON:

7 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2019

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDERS:

  1. Appeal dismissed.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of 19 indictable offences including indecent treatment of a child under 16, who was also under 12 (counts 3, 4, 5 and 9), attempted sodomy of a child under 12 and under care (count 8), and unlawful sodomy of a child under care (counts 12, 18 and 20) – where the appellant contends that the jury’s findings in respect of the circumstance of aggravation in relation to counts 4, 5, 8 and 9 were unreasonable having regard to the evidence – where the appellant contends the complainant was an unreliable historian – whether it was unreasonable for the jury to find beyond a reasonable doubt that the circumstance of aggravation had existed

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of 19 indictable offences including indecent treatment of a child under 16, who was also under 12 (counts 3, 4, 5 and 9), attempted sodomy of a child under 12 and under care (count 8), and unlawful sodomy of a child under care (counts 12, 18 and 20) – where the appellant contends that the jury’s verdicts in respect of counts 12, 18 and 20 were unreasonable having regard to the evidence – where the appellant contends that the complainant’s evidence and the medical evidence do not support the jury’s verdict – where there had been a lack of physical evidence of the offence – where there had been a delay between the last offending and obtaining medical evidence – whether it was unreasonable for the jury to find the appellant guilty beyond a reasonable doubt

Criminal Code (Qld), s 668E

GAX v The Queen (2017) 91 ALJR 698; (2017) 344 ALR 489; [2017] HCA 25, followed

R v TAI [2018] QCA 282, cited

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

COUNSEL:

M J Copley QC for the appellant/applicant

D Balic for the respondent

SOLICITORS:

AW Bale and Son for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Brown J and agree with those reasons and the orders her Honour proposes.
  2. [2]
    McMURDO JA:  I agree with Brown J.
  3. [3]
    BROWN J:  Following a trial, the appellant was convicted of 19 counts of sexual offending in relation to a sole complainant:
  • Count 1: maintaining a sexual relationship with a child, between 11 August 2008 and 1 December 2009, for which he was sentenced to 10 years and six months’ imprisonment;
  • Counts 3, 4, 5 and 9: indecent treatment of a child under 16, who was also under 12 and under care, with the appellant sentenced to three years’ imprisonment on each count;
  • Counts 6 and 7: rape, with the appellant sentenced to five years’ imprisonment on each count;
  • Count 8: attempted sodomy of a child under 12 and under care, for which the appellant was sentenced to four years’ imprisonment;
  • Counts 10, 11, 13, 14, 15, 16, 17 and 19: indecent treatment of a child under 16 and under care, with the appellant sentenced to three years’ imprisonment on each count; and
  • Counts 12, 18 and 20: unlawful sodomy of a child under care, with the appellant sentenced to six years’ imprisonment on each count.
  1. [4]
    He was acquitted of count 2, which was of a charge of indecent treatment of a child under 16, the child being under 12 and under the appellant’s care.
  2. [5]
    The appeal against conviction is confined to two grounds: first, the unreasonableness of the verdicts returned on counts 12, 18 and 20, which were the charges of unlawful sodomy of a child under care,[1] and secondly, the unreasonableness of the jury’s finding as to the circumstance of aggravation attaching to counts 4, 5, 8 and 9, namely that the complainant was under 12 at the time those offences were committed.

Background

  1. [6]
    The complainant turned 12 on 10 January 2009.  Counts 2 through to 9 were charged as having occurred between 11 August 2008 and 1 January 2009, at which time the complainant was under 12 years of age.  Counts 10 through to 18 were charged as having occurred between 31 December 2008 and 1 December 2009.  Count 19 was charged as having occurred between 10 July 2009 and 25 July 2009 and count 20 was charged as having occurred between 31 October 2009 and 1 December 2009.
  2. [7]
    The complainant participated in a police interview on 11 February 2010 and later gave pre-recorded evidence, including under cross-examination, on 28 September 2012.  The complainant was a friend of the appellant’s son and had been so since approximately January 2007.[2]  The appellant and his family lived in the same suburb as the complainant and his family.  For a period of time, the two families were close.[3]  The families had a falling out and the friendship between them came to an end towards the end of 2009, from which time the complainant was banned from going to the appellant’s house.[4]  The complainant’s parents took him to the police in February 2010.[5]
  3. [8]
    The counts on indictment 305 of 2014 arose out of a series of incidents between the appellant and complainant.
  4. [9]
    Counts 2 and 3 on the indictment[6] arose out of an incident in the appellant’s shed (“the shed incident”).
  5. [10]
    Counts 4 to 9 arose out of events which took place late one evening in the lounge room of the appellant’s house, when the complainant was sleeping over and the appellant’s son and another friend of the son were sleeping in a bedroom (“the lounge room incident”).  Counts 4, 5, 8 and 9 were found by the jury to include the aggravating factual circumstance of the complainant having been under 12 at the time the offences were committed.
  6. [11]
    Counts 10 through to 13 arose out of an incident that occurred in the appellant’s bedroom (“the bedroom incident”).
  7. [12]
    Counts 14 to 18 arose out of an incident in a vegetable patch behind the appellant’s house (“the vegetable patch incident”).
  8. [13]
    Count 19 represents an incident that occurred in the complainant’s own bedroom, when the defendant was setting up speakers he had gifted to the complainant (“the speakers incident”).  Count 20 arose out of an incident which occurred at a warehouse (“the depot incident”).

Appellant’s contentions

  1. [14]
    The appellant submits that the complainant’s evidence concerning the timing of counts 4, 5, 8 and 9 was simply too equivocal to enable a jury to be satisfied beyond reasonable doubt that they occurred when he was under 12.  In aid of that submission, the appellant relies on other aspects of the complainant’s evidence that it contends illustrates that he was unreliable about the timing of events, as well as the complainant’s purported inability to tie the event to any particular time of the year.
  2. [15]
    In relation to the counts of unlawful sodomy (counts 12, 18 and 20), the offence as it was charged required the appellant to have penetrated the anus of the complainant with his penis, with the complainant being a child under 18 who was also under the care of the appellant.[7]  The appellant submits that the verdicts in relation to those counts were unreasonable because, when regard is had to the complainant’s evidence about the frequency, nature and extent of that conduct, coupled with the medical evidence of the absence of any physical damage to his body, it was not open to the jury to be satisfied of those counts beyond reasonable doubt.

Respondent’s contentions

  1. [16]
    In relation to the timing of counts 4, 5, 8 and 9, the Crown submits that although the complainant’s evidence as to dates was fairly general, there was sufficient detail for the jury to conclude beyond reasonable doubt that the acts were committed when the complainant was under 12.  The Crown further submits that the primary Judge approached this issue carefully and adequately in his summing up.  That included his Honour taking pains to explain to the jury that the age of the complainant was an “extra allegation”[8] that had to be proved beyond reasonable doubt and directing them to scrutinise the evidence carefully.
  2. [17]
    The Crown submits that greater reliance should be placed, in terms of ascertaining the timing of events, upon the complainant’s evidence in the police interview of 11 February 2010 than on the evidence given in the pre-recording on 28 September 2012, the former being closer in time to the events in question.
  3. [18]
    As to the guilty verdicts on the counts of unlawful sodomy, the Crown submits that the complainant’s evidence as to the estimated timing of the incidents referred to the length of the whole incident, not just the period of penetration.  Further, the Crown submits that the evidence was that there was no full anal penetration and there was no suggestion that it was rough.  The Crown submits that the lack of any physical evidence of anal penetration was not inconsistent with the counts of unlawful sodomy, but rather could be explained by the medical evidence.

The evidence

  1. [19]
    The trial went for five days and a number of witnesses were called.  The complainant was the principal witness.  The police interview of the complainant was admitted in evidence pursuant to s 93A of the Evidence Act 1977 (Qld).  The pre-recorded cross-examination of the complainant was also admitted.  Both were played to the jury.  The witnesses called included the parents of the complainant; the appellant’s wife; the appellant’s brother; Dr Bennett, who examined Mr Manning specifically to ascertain whether he had been circumcised; and Dr Messer, who examined the complainant.

The shed incident

  1. [20]
    Count 2, of which the appellant was acquitted, and count 3 were alleged to have occurred when the appellant and the complainant were alone in the shed in the appellant’s backyard.  Count 3 was said by the complainant to be the first occasion on which the appellant sucked the complainant’s penis.[9]  The complainant thought that the incident in the shed occurred close to the end of 2008 on the holidays or on a weekend in the morning.[10]

The lounge room incident

  1. [21]
    Counts 4 to 9 were alleged to have occurred at night-time in the appellant’s lounge room.  The appellant’s wife and son and another friend of the son were asleep in bedrooms, whereas the complainant was sleeping in the lounge.[11]  According to the complainant, this was the first sleepover during which he was touched.[12]  He agreed that he was touched at the “very first sleepover” and described it as the one in the lounge when the other friend was with the appellant’s son in a bedroom.[13]  He thought it took place at the end of 2008.[14]  Count 4 was an alleged touching of the complainant’s penis.  Count 5 involved the appellant sucking the complainant’s penis.  Count 6, a count of rape, involved the appellant putting his penis in the complainant’s mouth.  Count 7 involved the appellant rubbing his finger around the complainant’s anus and then penetrating his anus with the finger, which was charged as rape.  Count 8 concerned an attempt to sodomise the complainant, while count 9 concerned the appellant then masturbating and ejaculating on the appellant’s stomach.  Prior to the appellant attempting to penetrate the complainant with his finger, the complainant stated that he spat on his finger before putting it in his bottom, “to make it slippery so it’d go in”.[15]  The complainant described the attempted rape as hurting him, which he told the appellant.[16]  He described the appellant as having “kept on trying and trying” to put his penis in his bottom.[17]  The appellant was then said to have asked the complainant whether he wanted him to “blow” on him, and he subsequently “spermed” on the complainant’s “belly”.[18]

The bedroom incident

  1. [22]
    Counts 10 to 13 involved four offences, including one count of unlawful sodomy, which was count 12.  The complainant stated that the offences occurred in the appellant’s bedroom between 3.00 pm and 5.30 pm “or something like that” on a Saturday afternoon, after the complainant had worked for the appellant.[19]  The complainant stated that the incident took place in 2009.[20]  This was the only occasion on which anything occurred in the appellant’s bedroom.[21]  According to the complainant, he thought that they were the only ones in the house and that the appellant’s wife and son were, at the time, “going to the airport…to pick up some friends or something”.[22]  The complainant said that the appellant sucked his penis and then got some lube from the side drawer to the left of the bed.  The complainant said that the tube was blue and white.[23]  After putting his finger with lube on it in the complainant’s backside (count 11), the complainant stated that the appellant attempted to put his penis into his backside, which hurt.  According to the complainant, the appellant was “holding his penis and pushing me on to it”[24] and trying to “stretch” the complainant’s backside “to make it bigger”.[25]  The complainant told the appellant that it was hurting, but the appellant continued.  According to the complainant, the appellant’s penis only went “halfway” in.[26]  The complainant said he then told the appellant to stop because it was “hurting too much”, at which point the appellant stopped and then masturbated into a tissue (count 13).[27]

The vegetable patch incident

  1. [23]
    According to the complainant, counts 14 to 18 occurred sometime between 4.00 pm and 5.30 pm in the vegetable patch in the appellant’s backyard during school holidays in 2009.[28]  The complainant and the appellant were at the vegetable patch near the shed.  The complainant did not know where the appellant’s son was, but thought that his wife was in the house.  He stated that the appellant pulled the complainant’s pants down and started rubbing his penis and then started to suck the complainant’s penis (count 14).  He then asked the complainant to suck his penis.  The complainant indicated he was uncertain about doing so because he thought they would get caught but, with encouragement from the appellant, he did it (count 15).  The appellant then pulled the complainant’s pants down and did something to the complainant’s backside “to lubricate it or something”, before starting to lick his anus.[29]  The appellant then placed his penis into the complainant’s anus and the complainant told the appellant it was hurting.[30]  The complainant thought the appellant’s penis went in “about halfway”.[31]  The complainant said the appellant “was going backwards and forwards” and he then told the appellant that they should stop because they were going to get caught.[32]  The appellant did not ejaculate on the complainant on this occasion.  The complainant described the abuse at the appellant’s house as having gone on for “a year and a half or something”.[33]
  2. [24]
    Count 19 occurred at the complainant’s house, in his bedroom, after the appellant had given him speakers.  According to the complainant, the incident took place in 2009.[34]  The complainant’s evidence was that the appellant’s son was also in the room and looking at the complainant’s things and, when the son was not looking or was out of the room, the appellant “kept on showing [the complainant] his penis”.[35]  The complainant’s parents and appellant’s wife were elsewhere in the house at the time.  The complainant’s mother and appellant’s wife gave evidence that the appellant gave the complainant the speakers.[36]
  3. [25]
    Count 20 concerned an incident at the depot where the appellant stored supplies of juice for his juice business.  The complainant described this as having occurred shortly before an argument between the appellant and his parents, after which he was banned from seeing the appellant.[37]  The evidence of the complainant’s parents was that this argument occurred in November or in late 2009.[38]  The appellant’s wife gave evidence that the relationship ended towards the end of 2009.[39]  The complainant worked for the appellant in his juice business on Saturdays and other days during the school holidays.  According to the appellant’s wife, this arrangement was in place from January 2009,[40] although the complainant’s mother originally thought it was in 2008.[41]  The complainant stated that the incident took place near the pallets in the depot where the appellant stored his juice.  On that occasion, the complainant said that the appellant put his penis into his backside and started to “push really hard”.[42]  He told the appellant it was hurting too much and asked him to stop, to which the appellant said he would buy the complainant a pellet gun if he let him keep going.[43]  The complainant said he really wanted a pellet gun, so he let the appellant do it.  He said it “really hurt” him.[44]  He said that the appellant then said he was about to “blow” and the complainant thought that he did it in him and fluid dropped on the ground.[45]  He stated that the appellant got his foot and rubbed around the concrete.[46]  No seminal fluid was detected on swabs of the area taken on 12 February 2010.
  4. [26]
    The complainant described a number of incidents in which the appellant put his penis into his backside.  He estimated there were some 16 to 20 such occasions.[47]  The appellant was not charged with all of those alleged occasions.  The complainant described an incident where he was in the lounge room with the appellant and the appellant’s son, and was lying in the same bed as the appellant’s son after they had all stayed up at night watching movies.  He said that the appellant’s son was asleep at the time.  He then said that the appellant had put his penis into his backside and ejaculated onto his tummy.[48]  He stated that at that time, the head of the appellant’s penis was inside his bottom and the rest was between the cheeks of his bottom.[49]
  5. [27]
    The complainant gave evidence that on the occasions the appellant’s penis was inside his bottom, he felt pain around his anus and “the skin, it like stings, like stretching”.[50]
  6. [28]
    Dr Messer gave evidence that he did not find any abnormalities in the complainant’s anus when he examined him in February 2010.  He stated, on the assumption that the complainant had been sodomised some two to three months before his examination, that he would not expect to see an injury, given the lapse of time.  Any damage that may have been present would almost certainly have healed completely and he would not have expected to find any abnormality.[51]  He did, however, agree with the general proposition that the rougher the anal penetration, the more likely there was to be an injury.[52]  He also stated that with repetition, the more likely there was to be injury.[53]  He agreed that prolonged or repeated anal penetration can produce scarring or loosening of a sphincter.  In response to the question of whether scarring and loosening of a sphincter is something that may well be present two, three or four months after repetitive anal penetration, Dr Messer stated that it might be, but such a presentation is not certain, as any such changes may disappear over varying periods of time.[54]  Accordingly, a normal presentation on examination does not preclude anal intercourse having taken place.[55]

The evidence in relation to the timing of Counts 4, 5, 8 and 9

  1. [29]
    In relation to counts 4, 5, 8 and 9, the appellant has sought only to overturn the circumstance of aggravation, namely that the complainant was under 12 when they occurred.  The appellant turned 12 on 10 January 2009.
  2. [30]
    Counsel for the appellant draws particular attention to the following statement by the complainant in police interview as demonstrating that the complainant’s evidence as to the timing of the lounge room incident was, effectively, a guess:

“[Officer]: -- how long – how long ago did it happen?

[Complainant]: I think at the end of 2008.

[Officer]: Okay. Tell me why you think it was around that time?

[Complainant]: Maybe it wasn’t 2008, I think it was 2009. No. Yeah, 2008. And then it stayed going on until the end of 2009.”[56]

  1. [31]
    Counsel for the appellant seeks to characterise the above statement as representing the only evidence in respect of the timing of the lounge room incident.[57]  He submits that it demonstrates that opting for one year over another was a guess by the complainant, rather than the complainant offering any convincing reason why the year was 2009.  Counsel submits this is consistent with other statements in which the complainant used equivocal language in identifying the timing of incidents generally.  He submits that the complainant’s own evidence betrays complete uncertainty as to when events occurred.  For example, counsel directs the Court to the following statement by the complainant, placing particular emphasis on his use of the words “or something”:

“[Officer]: Okay. So you’ve told me about that one time in the house, the one time in the shed, and the time at the vegetable garden. What other times have happened at his house?

[Complainant]: I don’t know. That’s it. But that’s been going on for a year and a half or something.”[58]

  1. [32]
    The appellant’s counsel directs the Court to a statement of the complainant in cross-examination concerning the timing of the final incident that occurred in the appellant’s bedroom, and which was the subject of counts 10 to 13:[59]

“Yes, okay. Now, having regard to this being - this is the last time - how long before you spoke to the police did this incident occur?-- Maybe two years.

Two years before - maybe, all right. And can you work out, was there any particular occasion, or a birthday or a holiday around the time that this incident occurred?-- I'm not sure.

All right. But it was certainly some - quite some period of time before you spoke to the police?-- Yes.”

  1. [33]
    Counsel for the appellant contends that the complainant’s statement would put that incident as having occurred in approximately February of 2008, which was prior to the earliest date charged on the indictment, and would not have assisted the jury to reach a positive conclusion as to the timing of different incidents beyond reasonable doubt.
  2. [34]
    The complainant was not asked about the timing of the lounge incident in cross-examination.  As counsel for the appellant submitted in this Court, that may have been a tactical decision, given the defence denied that any offending occurred.
  3. [35]
    The appellant also directs the Court to the complainant’s evidence as to the timing of a falling out between the appellant and the complainant’s parents, from which time the complainant ceased visiting the appellant’s house.  The complainant’s evidence in this regard was said to be inconsistent with the evidence of his mother and father.  The appellant notes that the mother’s evidence was that the falling out had occurred in November of 2009 and the father’s evidence was that the falling out had occurred in late 2009,[60] whereas the complainant’s evidence was that it had occurred about one year prior to the time of the police interview, in February 2010, which would have placed the event at February 2009:[61]

“How long before you went to the police did you last go to Greg's home?-- Probably a year or something around there.

And did you stop going to Greg's home because your mum and dad had an argument with Greg?-- Yes.”

  1. [36]
    In support of the submission that the complainant was an unreliable historian in terms of timing, the appellant also notes the following evidence of the complainant in cross-examination:[62]

“Do you consider yourself to be an honest person?-- Yes.

Right. And follow on from that, do you consider yourself to be a truthful person?-- Yes.

And do you consider that when you are relating a story or telling a story about something that you say occurred, that you are accurate in ------?-- I have got a memory problem.

All right. And how long have you had that for? All your life?-- Think so, yes.

Right. So you have some difficulties in accurately recalling events. Is that correct?-- Yes.

You said that it depends, about your reliability; depends on what?-- If someone says something to me ---

Yes?-- I do tend – my brain, it can’t process some information.

Yes?-- So, yeah.

And is that more so, so far as your understanding is concerned?-- Yeah.

All right. Do – does your memory jumble things up?-- No.”

  1. [37]
    As to the statement of the complainant that the appellant seeks to characterise as the primary piece of evidence in relation to the timing of counts 4, 5, 8 and 9, the Crown contends that the complainant’s equivocation was a matter of “phraseology” and “consistent with the way that he expresses himself”.[63]  The Crown emphasises that the complainant’s immediately subsequent oral evidence confirmed that the event occurred in 2008.  Counsel for the Crown submits that the complainant’s evidence showed that he made a clear delineation between events in 2008 and 2009.  The Crown submits that while the timing of those counts was expressed in general terms, other general timeframes, such as when the complainant worked for the appellant,[64] were accurate and corroborated by other evidence.  Further, there was evidence that he had gone back to the appellant’s house after the lounge room incident.  Counsel for the Crown further submits that, given the complainant’s stated “memory problem”, the jury could give greater weight to the timeframes stated in the interview with police than those provided during the cross-examination, which took place some two and a half years later.
  2. [38]
    The Crown submits that the jury could reasonably conclude that the complainant was under 12 at the time of the relevant counts, having regard to the totality of the evidence, including the complainant’s ability to provide more specific timelines in relation to incidents other than the lounge room incident. The Crown particularly directs the Court to the complainant’s evidence as to the timing of the shed incident, which he contextualised as having occurred during a weekend or holiday:[65]

“[Officer]: Was it any part of the year that you would remember?

[Complainant]: The end of 2008 I think, like close to the end.

[Officer]: Okay. What day of the week was it do you think?

[Complainant]: I don’t know.

[Officer]: Okay.

[Complainant]: It was either the holidays or a weekend.

[Officer]: Okay. So it was either a – the weekend or a – or a um, holiday.

[Complainant]: Yes.

[Officer]: Okay.

[Complainant]: Like holiday off school.”

  1. [39]
    In that regard, both the complainant’s mother and appellant’s wife said the complainant would go to the appellant’s house on Saturdays and school holidays.
  2. [40]
    The Crown also directs the Court to the complainant’s specificity as to the timing of the vegetable patch incident, identifying that it occurred during the holidays of 2009.[66]  Further, the complainant stated that he thought the bedroom incident happened in 2009 while the appellant’s wife and son were at the airport.  While there was a co-correlation in the timing, the appellant’s wife stated she had gone to the airport during the week in 2009, not on a weekend or during school holidays.
  3. [41]
    The Crown also notes the complainant’s ability to identify that the relevant year was 2009 in the context of incidents other than the lounge room incident.[67]
  4. [42]
    The Crown refers to the evidence of other witnesses corroborating aspects of the complainant’s evidence.  The Crown notes that in the first recording of evidence given by the complainant, the complainant reported that he had begun working with the appellant in 2009 and had known him for four years.[68]  The Crown noted that both points are supported by, or at least not significantly different from, the evidence of the complainant’s mother, who recalled that the appellant had met the complainant sometime before January 2007.[69]  The appellant’s wife also gave evidence as to the timing of the first sleepover occurring prior to 2009:[70]

“Okay. When’s the first time, do you think, that you remember [the complainant] staying overnight at your house?---I don’t really recall the - - -

Okay?---A date. I know it was prior to 2009.” (emphasis added)

Consideration – Circumstance of Aggravation

Applicable Principles

  1. [43]
    The Court can set aside that part of a verdict relevant only to a circumstance of aggravation.[71]  The appellant contends that, pursuant to s 668E of the Criminal Code Act 1899 (Qld), the verdicts of guilty on the counts referred to above were unreasonable and cannot be supported by the evidence.
  2. [44]
    The relevant principles have been stated by the High Court in SKA v The Queen[72] and GAX v The Queen.[73]  A  convenient summary of the principles was recently set out by Philippides JA in R v TAI[74] as follows:

“The approach of an appellate court where such a ground is raised may be summarised having regard to the High Court authorities as follows:

  1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen and MFA v The Queen.
  2. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v BadenClay.
  3. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.
  4. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 and to set aside a verdict based upon that evidence: M v The Queen and MFA v The Queen.
  5. The ultimate question for the appellate court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v BadenClay. In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen and SKA v The Queen. In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.” (footnotes omitted)

Consideration

  1. [45]
    While the complainant’s response as to when the lounge room incident occurred was expressed with some hesitation, it was open to the jury to consider that his manner of responding was akin to a person thinking out loud and being cautious in a foreign environment, given there were a number of other facts supporting the 2008 estimate.
  2. [46]
    The complainant did make a number of references to time, albeit only by referring to particular years.  In his first interview, he identified the appellant as having touched him when he was in the lounge room.[75]  He referred to a friend of the appellant’s son having been in the house at that time, but stated that the friend had slept in a bedroom with the appellant’s son.[76]  He described the lounge room incident as being the first time the appellant had touched him in the lounge room at a sleepover.[77]  After he made the statement as to timing which the appellant relies upon as the primary piece of evidence concerning the timing of that incident, the complainant said:[78]

“OFFICER: Yes. So when you think this happened at the end of 2008, how long ago would that be do you think?

[Complainant]: Year and a half.

OFFICER: So was that long ago, was it? Year and a half ago?

[Complainant]: Yes.

OFFICER: When this happened, how many times had you slept at [the appellant’s son’s] house when this one happened?

[Complainant]: I’m not sure of the number I got.

OFFICER: How many do you think?

[Complainant]: Well 12 or something.

OFFICER: Was this after 12 times sleeping there or is this one of the 12 times like?

[Complainant]: One of them.”[79]

  1. [47]
    A year and a half prior to the interview would place the incident in the second half of 2008.[80]
  2. [48]
    The complainant identified that a further incident that occurred in the lounge room, when the appellant’s son was asleep in the same bed as him, took place after the lounge room incident in which the friend of the appellant’s son had also slept over.[81]  The complainant’s evidence identified the lounge room incident as the first incident of the two described.[82]
  3. [49]
    The complainant was able to provide factual detail of the lounge room incident itself, including what he was wearing;[83] the presence of a clock on the wall, which is how he knew the lounge room incident took place between 10 pm and 2 am;[84] that he could see a window;[85] the sequence of events; and it being the first time the appellant had “spermed” on him.[86]
  4. [50]
    The complainant placed the shed incident as happening at the end of 2008, albeit that he added the words, “I think”.  That reference to the shed incident occurring in 2008 gives context to the complainant’s statement that he was not sure whether the lounge room incident, which he also said occurred in 2008, was the first occasion on which something had taken place at the appellant’s house.[87]
  5. [51]
    The complainant reiterated the estimated date of 2008 for the lounge room incident twice and stated it was either on a holiday or a weekend.[88]  In contrast, however, he placed the vegetable patch incident as occurring in the holidays of 2009.[89]
  6. [52]
    Some corroboration for the timing of 2008 was provided by the evidence of the appellant’s wife that the first time she could remember the complainant staying overnight at their house was prior to 2009.[90]  She could recall three or four occasions on which the complainant had stayed over.[91]  She could also recall one occasion on which the friend of her son had stayed over.[92]
  7. [53]
    The complainant identified that the first time he was abused by the appellant while staying overnight at the appellant’s house was during the first sleepover, when the friend of the appellant’s son was also staying over.  In that regard, his evidence was:[93]

“[Officer]:  So the very first sleepover did it happen?

[Complainant]:  Yes.

[Officer]:  Tell me about that very very first one, where did you sleep?

[Complainant]:  That – that’s the first one I told you.

[Officer]:  Is that the first one when [the appellant’s son] was with [the friend]?

[Complainant]: Yeah, I remember two of them.

[Officer]:  And this was the second one that when you all three in the lounge?

[Complainant] Mmm.”

  1. [54]
    The trial judge clearly directed the jury as to the need for them to be satisfied beyond reasonable doubt that the complainant was under 12 in order to convict on counts 4 to 9 with the circumstance of aggravation.[94]  In that regard, his Honour specifically drew the jury’s attention to the evidence of the complainant that was principally relied upon by the appellant in this appeal.[95]
  2. [55]
    Counsel for the appellant submits that the summing up of the trial judge twice drew the jury’s attention to the importance of the timing of the events comprising counts 4 to 9,[96] and that “perhaps there one sees in the summing up a concern on the judge’s part as to whether the evidence was really sufficient to sustain the allegation”.[97]  That, in my view, overstates the position.  His Honour was quite properly directing the jury as to the evidence concerning the timing of counts 4 to 9 and as to the legal standard to which they had to be satisfied that the complainant was under 12, by reference to the relevant evidence, rather than expressing his own concerns.
  3. [56]
    While the complainant’s evidence as to when he estimated the lounge room incident occurred did vacillate between 2008 and 2009, he returned to it being the year of 2008, which was his initial estimate.  Further, he added, “and then it stayed going on until the end of 2009”, which correlates with his evidence that the speakers incident, bedroom incident and depot incident all took place in 2009, not long before his parents had a falling out with the appellant in approximately November 2009.  Further, as the Crown submits, when the interviewing police officer asked the complainant to estimate how long ago the lounge room incident had occurred, he stated it had been about “a year and a half ago”, without any equivocation.  That statement placed the events as having taken place in the second half of 2008.  Further, the appellant’s wife confirmed that the complainant had started sleeping over prior to 2009.  The complainant himself also stated that the lounge room incident was the first sleepover during which he was touched by the appellant and that it had occurred prior to a second incident that took place in the lounge room, when the appellant’s son was present and asleep in the same bed.
  4. [57]
    The complainant also gave general and consistent evidence as to what had taken place in the shed incident, lounge room incident,  bedroom incident, speaker incident and depot incident, including when cross-examined some two and half years later, although he provided less detail in the pre-trial recording.  In his police interview, he was not only able to describe what had occurred physically in some detail, but also other matters, such as being able to see a clock on the wall, the clothing worn, the location of windows and, in the case of the bedroom incident, the fact that the appellant had taken the “lube” from the bedside drawer.  The police later recovered a tube of KY jelly from the drawer which was blue and white, as had been described by the complainant, albeit that no DNA was found at the time.  When describing the colour of the tube, he again added the words “I think”.[98]  However, those words suggest that the complainant was cautious, not that he was necessarily doubtful about the matter and engaging in reconstruction.  Notably, he also did state with respect to some of his answers, “I’m just guessing”,[99] and did not nominate a specific date for other events when questioned.[100]  A review of the recording of his police interview did not reveal any evidence of greater uncertainty than was revealed by the transcript of the interview.
  5. [58]
    While the complainant did agree in cross-examination that he had a memory problem, the evidence was not specific as to how that problem affected his memory.  Although he agreed it had been a problem all his life, the cross-examination took place some two and a half years after he had spoken to police, whereas he participated in the police interview some three to four months after the last incident with the appellant, which occurred prior to the falling out between his parents and the appellant.  The complainant’s evidence during the cross-examination was markedly less detailed than the evidence given in police interview.  A jury could conclude that difference was attributable to a decrease in recollection as a result of the passage of time and, to the extent that he suffered a memory problem, it would be more pronounced with the passage of time.  The appellant’s counsel in argument relied upon the response of the complainant in cross-examination that put an incident of sexual abuse as having occurred in February of 2008.  However, that response was given in the context of the cross-examination, which took place some two and a half years after the police interview.  The jury were entitled to place more weight on the evidence that was given closer to the events in time than on the cross-examination.
  6. [59]
    Taking the whole of the evidence into account, in my view, it was open for the jury to be satisfied beyond reasonable doubt that the circumstance of aggravation in relation to counts 4 to 9 was established on the evidence.

Evidence as to Counts 12, 18 and 20

  1. [60]
    The second ground of appeal relates to the lack of physical evidence suggesting penetration of the complainant’s anus.
  2. [61]
    Count 12 arose out of the bedroom incident.  According to the complainant, the appellant was trying to stretch his bottom with his penis, “like trying to make it bigger so that it will be – it will feel better for him”.[101]  The complainant stated that the appellant’s penis was hard and stretching his bottom and it hurt.[102]  He said that he told the appellant that it was hurting, but the appellant kept trying to put his penis into the complainant’s bottom.  He said that the appellant finally stopped when he told the appellant that it was hurting too much.[103]  He estimated that the appellant was trying to get his penis in for five to six minutes, and only got it “halfway” in,[104] for just a couple of seconds.[105]  The complainant stated that prior to the penetration, the appellant had moistened his anus.  He did not agree in cross-examination that after this incident, he was “an absolute quivering mess because of the fear and pain [he had] been through”.[106]
  3. [62]
    In relation to count 18, which arose out of the vegetable patch incident, the complainant’s evidence was that the appellant had put his penis about “halfway” into the complainant’s anus.  The complainant stated that prior to the penetration, the appellant had moistened his anus.  The complainant stated that the appellant “did it in like five minutes or something” and the appellant was making a “backwards and forwards” movement.[107]  The complainant again told the appellant that it was hurting and asked him to stop.[108]  The complainant said that on this occasion, the appellant had not “spermed” on him.[109]
  4. [63]
    In relation to the depot incident, which formed the basis for count 20, the complainant stated that the appellant put his penis into his bottom and started to “push really hard”,[110] in response to which the complainant told him it was hurting too much and to stop.  He said the appellant offered to buy him a pellet gun if he would let him keep going, which the complainant then did, but it really hurt him.  The complainant stated the pain “like stings, like stretching”.[111]  He recalled that the appellant then said that he was about to “blow”, and he thought that he did it in him.[112]  The appellant did not in fact buy the complainant a pellet gun,[113] nor was any seminal fluid found at the location where the complainant described the event as having occurred.
  5. [64]
    When asked to describe the number of occasions on which the appellant had penetrated the complainant’s anus with his penis, the complainant made an estimate of between 16 and 20.[114]
  6. [65]
    The complainant stated in cross-examination that he never noticed any blood after penetration, but agreed that he was sore in the bottom for a number of hours, if not a day or two.[115]  The complainant also stated in cross-examination that it would take the appellant some 10 to 15 minutes to get only part of his penis inside him, in which time the appellant was pushing and probing and exerting force against his backside, while the complainant clenched the muscles of his backside.  He stated that on average, when the appellant did get it inside, he left it there for “probably a minute, sometimes – it hurt way too much” and that on every occasion, he told the appellant that it hurt.[116]
  7. [66]
    The medical evidence has been referred to above.  In oral submissions, the appellant emphasised that when evidence was being led from Dr Messer, the relevant question was put to him in the singular, not on the basis of the complainant having been sodomised in excess of a dozen times, the last being some two to three months before Dr Messer examined him.[117]  The Crown does not dispute this.  The appellant submits that that is significant when regard is had to the other evidence of the doctor, in which he agreed that repeated or prolonged anal penetration was more likely to cause an injury such as scarring and loosening of the sphincter.
  8. [67]
    The Crown, however, submits that the complainant’s evidence as to the extent of the penetration must be considered in its full context, including that his estimates of time of five to six minutes or 10 minutes referred to the appellant’s attempts to achieve penetration, not five to 10 minutes of actual penetration.  Further, there was no evidence of penetration with the entirety of the appellant’s penis.  Most of the complainant’s evidence in relation to penetration did not extend beyond the penis having gone in halfway.  That is borne out by the complainant’s evidence, including him correcting the police officer when he suggested that the complainant had said the appellant’s penis was in his bottom for six minutes by stating, “[h]e was trying to get in there for six minutes”.[118]
  9. [68]
    The complainant’s evidence did not suggest that full penetration by the appellant’s whole penis was ever achieved, rather that the greatest degree of penetration involved the appellant’s penis being “halfway” in.  Further, the complainant’s evidence supports the fact that the periods of time in which the appellant’s penis penetrated his anus were not extended, the greatest estimate of time being one minute.  There was no evidence that the sexual activity involved significant force or was rough.  Further, the complainant’s evidence was that there was no blood after the incidents, albeit he felt sore for some hours or a day or two.  The medical evidence of Dr Messer was that, while regular and repeated anal penetration may give rise to scarring and loosening of the sphincter which may be present two, three or four months after the penetration, such a presentation is not certain because those changes may disappear over periods of time.  Accordingly, he stated that a normal presentation on examination does not preclude anal intercourse having taken place.[119]
  10. [69]
    There was also evidence of the use of lubrication prior to penetration.  In relation to counts 12 and 18, the complainant’s evidence was that the appellant had moistened his anus before seeking to penetrate the complainant’s anus with his penis.  In relation to count 12, the complainant’s evidence was that the appellant had put a lubricant on his finger and spread it around the complainant’s bottom.  In that respect, police did find a tube of KY jelly in the appellant’s bedroom beside his bed, which matched the colour description of the complainant.  In relation to count 18, the complainant’s evidence was that the appellant had licked his bottom prior to penetration occurring.  There was no such evidence, however, in relation to count 20.

Consideration

  1. [70]
    The appellant’s contention assumes that, if there had been penetration sufficient to found the appellant’s convictions under the now-repealed offence of unlawful sodomy, physical evidence of such penetration would have been apparent when the complainant was medically examined in February 2010.  That assumption is not borne out by the evidence.  While the complainant’s evidence was that there was repeated penetrative activity, the evidence does not support that it was rough or that excessive force was used.  Other than during the depot incident, the complainant’s evidence was that the appellant would stop penetrating him after the complainant complained that it was hurting and asked him to stop, albeit the complainant had to ask more than once.  The fact that no injury was revealed on medical examination was explained by the evidence of Dr Messer.  Insofar as Dr Messer stated that even though repeated and prolonged activity had a greater likelihood of causing scarring or physical injury, those features would not necessarily be evident two, three or four months later.  The weight of the evidence favoured that the falling out between the appellant and complainant’s family had occurred in November 2009, some three months before the interview.
  2. [71]
    Further, the jury were directed to the lack of any physical injury being revealed by the medical examination.  In its closing, the defence relied on the fact that Dr Messer had not found any evidence of physical injury in his examination of the complainant.  The defence also asserted in closing that the medical evidence as to the likelihood of injury being apparent should not be relied upon at all, because the doctor did not provide an opinion on the basis of the actual evidence in the case at hand, but rather on the basis of a hypothetical.[120]
  3. [72]
    The medical evidence provided was not, however, inconsistent with the evidence of the complainant.  The absence of injury was not necessarily inconsistent with penetration having occurred.  It cannot be concluded, as the appellant submits, that as a matter of common sense there must have been injuries inflicted upon the complainant that would have been evident when the complainant was medically examined in February 2010.
  4. [73]
    Taking the whole of the evidence into account, in my view, it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of counts 12, 18 and 20.

Conclusion

  1. [74]
    Neither of the grounds of appeal have been established.

Orders

  1. [75]
    I would dismiss the appeal.
  2. [76]
    The appellant also applied for leave to appeal against his sentence of 10.5 years’ imprisonment for count 1, on the ground of manifest excess.  However, the application was pursued only in the respect that his appeals against conviction enjoyed any success.  The application for leave to appeal should be refused.

Footnotes

[1] Criminal Code Act 1899 (Qld), s 208(1)(a)(2)(b)(ii).  That provision has since been repealed.

[2] AB II 221/9-14.

[3] AB II 211/30-46 and AB II 212/1-12.

[4] AB II 213/30-46 – AB II 214/1-10; AB II 228/36-41; AB II 290/26-44.

[5] No preliminary complaint had been made.

[6] The appellant was found not guilty of count 2 on the indictment.

[7] Criminal Code (Qld), s 208(1)(a)(2)(b)(ii) (now repealed);  R v Reekspear (1932) 1 Mood 342; 168 ER 1296.

[8] AB II 83/8.

[9] AB II 535/4-14.

[10] AB II 539/5-51.

[11] AB II 525/51 – AB II 533/55.

[12] AB II 525/36-50.  However, he was unsure whether this was the first time something had happened at the appellant’s house: AB II 526/54-60.

[13] AB II 563/28-30.

[14] AB II 527/6-30.

[15] AB II 531/19.

[16] AB II 531/1-28.

[17] AB II 531/45-47.

[18] AB II 531/51-58 – AB II 532/1-28.

[19] AB II 582/12-33.

[20] AB II 578/20-30.

[21] AB II 582/40-43.

[22] AB II 582/35-38.

[23] AB II 579/11.

[24] AB II 579/50-51.

[25] AB II 579/55-56.

[26] AB II 580/24.

[27] AB II 580/30-55.

[28] AB II 540/6 – AB II 544/50.

[29] AB II 540/39-42.

[30] AB II 542/37-38.

[31] AB II 542/52.

[32] AB II 543/1-12.

[33] AB II 544/52-60.

[34] AB II 577/18-28.

[35] AB II 573/42 – AB II 575/60.

[36] AB II 292/4-17; AB II 214/20-30, although the complainant’s mother thought they were given to the complainant in 2008.

[37] AB II 557/45 – AB II 558/28.

[38] AB II 213/30-32; AB II 228/36-41.

[39] AB II 290/26-44.

[40] AB II 282/37-41.

[41] AB II 213/9-11.

[42] AB II 556/12-13.

[43] AB II 556/17-18.

[44] AB II 556/28.

[45] AB II 556/30 – AB II 557/5.

[46] AB II 557/1-15.  He later said this was incorrect and a white towel was used to wipe it up.

[47] AB II 555/20–50.

[48] AB II 560/14-53.

[49] AB II 562/8-12.

[50] AB II 572/40-60.

[51] AB II 244/26-41.

[52] AB II 245/43-44.

[53] AB II 245/46-47.

[54] AB II 247/1-24.

[55] AB II 247/26-27.

[56] AB II 527/15-25.

[57] T1-3/30-32.

[58] AB II 544/ 52-58.

[59] AB II 24.

[60] The appellant’s wife’s evidence was that the falling out was towards the end of 2009: AB II 290/30.

[61] AB II 38.

[62] AB II 8.

[63] T1-22/37-38.

[64] AB II 515-516.

[65] AB II 539/35-56.  Counsel for the appellant described this evidence as being “not categoric”, drawing particular attention to the complainant’s use of the words “I think”: T1-9/25.

[66] AB II 544/39-50.

[67] AB II 577/ 20-28; AB II 578/ 26-30.

[68] AB II 514/1-3.

[69] AB II 221/9-18.  She confirmed that the appellant’s wife and son had been at the complainant’s tenth birthday party: AB 224/1-7.

[70] AB II 281/ 28-31.

[71] R v Boyd [2001] QCA 421.

[72] (2011) 243 CLR 400 at 406.

[73] (2017) 334 ALR 489 at [25].

[74] [2018] QCA 282 at [37].

[75] AB II 520/20-50.

[76] AB II 518/17-21.  The appellant’s wife confirmed the friend of the appellant’s son had stayed over with the appellant’s son while the complainant was in the lounge room: AB II 282/15-16.

[77] AB II 525/47 – AB II 526/50.

[78] AB II 527/57 – AB II 528/20.

[79] The estimated number of sleepovers, however, was the subject of differing evidence by the complainant.  For example, at AB II 563/1-20, he estimated that 10 to 15, and then a revised 6 to 10, sleepovers had occurred.  Counsel for the appellant contended, in contrast, that the complainant’s statement as to the number of times he had slept at the appellant’s house was “not precise” and afforded little temporal context, being “just one of any number of sleepovers” (T1-8/40-41).

[80] He also in cross-examination referred to the time frame of a year and a half, but that was by reference to the last occasion on which he had been at the appellant’s house before going to the police.

[81] AB II 562/25-51.

[82] AB II 563/28-43.

[83] AB II 528/21-37.

[84] AB II 529/15-22.

[85] AB II 530/19.

[86] AB II 531/56.

[87] AB II 526/54-60.

[88] AB II 539/5-50.

[89] AB II 544/41-50.

[90] AB II 281/25-31.

[91] AB II 281/19-21.

[92] AB II 282/13-17.

[93] AB II 563/28-45.

[94] AB I 92/35-41; AB I 119/4-18.

[95] AB II 527/12-25; AB I 92/10-33.

[96] AB II 92/35-41; AB II 119/4-18.

[97] T1-12/38-41.

[98] AB II 579/11.

[99] See, e.g. AB II 561/40.

[100] See, e.g. AB II 568/36-47.

[101] AB II 579/55-57.

[102] AB II 580/3.

[103] AB II 580/33-35.

[104] AB II 580/12-25.

[105] AB II 581/10-60.

[106] AB II 53/14-15.

[107] AB II 543/1-12.

[108] AB II 542/38-39; AB II 543/11-12.

[109] AB II 543/40-47.

[110] AB II 556/12-13.

[111] AB II 572/49-52.

[112] AB II 556/29-33.

[113] Although he said his parents and the appellant had had a falling out not long after.

[114] AB II 555/20-50; AB II 558/30-33.

[115] AB II 37.

[116] AB II 36 – AB II 37.

[117] Although earlier in his evidence, he had confirmed he was familiar with all of the alleged incidents that were the subject of the indictment.

[118] AB II 581/38-50.

[119] AB II 247/1-27.

[120] AB I 71/37 – AB I 74/20.

Close

Editorial Notes

  • Published Case Name:

    R v Manning

  • Shortened Case Name:

    R v Manning

  • MNC:

    [2020] QCA 14

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Brown J

  • Date:

    07 Feb 2020

Litigation History

Event Citation or File Date Notes
Primary Judgment DC305/14 (No Citation) 16 Apr 2018 Date of Conviction (Devereaux SC DCJ).
Primary Judgment DC305/14 (No Citation) 24 Apr 2018 Date of Sentence (Devereaux SC DCJ).
Appeal Determined (QCA) [2020] QCA 14 07 Feb 2020 Appeal against conviction dismissed; application for leave to appeal against sentence refused: Morrison and McMurdo JJA and Brown J.

Appeal Status

{solid} Appeal Determined (QCA)