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Queensland Judgments
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  • Unreported Judgment

R v OJH

 

[2020] QDC 71

DISTRICT COURT OF QUEENSLAND

CITATION:

R v OJH [2020] QDC 71

PARTIES:

THE QUEEN

v

OJH

(Defendant)

FILE NO/S:

DC 1484 of 2019

DIVISION:

Criminal

PROCEEDING:

Trial (Judge-only)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2020

JUDGE:

Rinaudo AM DCJ

ORDER:

Not guilty on count 1 of the indictment

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY –where the alleged offence was historical – where the evidence of the complainant and preliminary complaint witness differ in a material way – where the judge directed himself as to the Longman and Robinson issues

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – where the defendant was charged with indecent assault on females – issue of whether the act was done with consent – issue of whether the act was indecent

Criminal Code 1899 (Qld) s 350

R v Collins [2016] QCA 256

R v MBX [2013] QCA 214

COUNSEL:

T Corsbie for the Crown

C Wilson for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Hannay Lawyers for the defendant

  1. [1]
    The defendant is charged with one count of indecent assault on females in the following terms:

That between the first day of January, 1988 and the thirty-first day of December, 1989 at Molendinar in the State of Queensland, [OJH] unlawfully and indecently assaulted [the complainant].

  1. [2]
    The defendant pleaded not guilty and elected to proceed to a judge-alone trial before me in the District Court.
  1. [3]
    In respect of the count, the prosecution must prove, beyond reasonable doubt that:[1]
  1. (1)
    The defendant assaulted the complainant;
  2. (2)
    The complainant is female;
  3. (3)
    The assault was unlawful; and
  4. (4)
    The assault was indecent.
  1. [4]
    Four admissions were agreed, pursuant to section 644 of the Criminal Code 1899:[2]
  1. (1)
    Real estate records list the defendant as having purchased 42 Theodore Place, Molendinar on 31 March 1988 (the premises at which the alleged offending is said to have occurred);
  2. (2)
    Queensland Transport records list the defendant as residing at 42 Theodore Place, Molendinar from 6 May 1988 to 28 February 1995  (the premises at which the alleged offending is said to have occurred);
  3. (3)
    The defendant was interviewed by police on 2 December 2017 and 4 March 2018. These conversations were recorded and the discs labelled ‘Interview 2 December 2017’ and ‘Interview 4 March 2018’ are copies of these conversations; and
  4. (4)
    The complainant was born on 15 February 1972.

The Evidence

  1. [5]
    The exhibits tendered in the trial were:
  1. (1)
    An email from the complainant to the defendant dated 31 October 2014;
  2. (2)
    An email from the defendant to the complainant dated 31 October 2014;
  3. (3)
    Admissions pursuant to s 644 of the Criminal Code;
  4. (4)
    An audio recording of a police interview held on 12 December 2017 (the transcript of this interview was marked as Exhibit F);
  5. (5)
    An audio recording of a police interview held on 4 March 2018 (the transcript of this interview was marked as Exhibit G);
  6. (6)
    A landscape photograph of the complainant with the defendant and one other;
  7. (7)
    A portrait photograph of the complainant with the defendant and one other;
  8. (8)
    A landscape photograph of the complainant with the defendant and two others;
  9. (9)
    An undated Christmas card from the complainant, her brother and mother to the defendant; and
  10. (10)
    An undated Christmas card from the complainant to the defendant.
  1. [6]
    The complainant gave evidence from her residence in Victoria. She said that she and defendant had first met at the German Club where her mother worked.[3] The defendant was a fencing coach and the complainant eight or nine years of age.[4] The defendant began coaching the complainant in the sport of fencing.[5] He continued to coach her for approximately twelve years there and at other places.
  1. [7]
    The complainant excelled at fencing, competing in Australian titles and international events. When the complainant was around eight to ten years of age, the defendant commenced training her at the Methodist Ladies College (MLC).[6] On an occasion around this time, the complainant says that the defendant caused her to feel uncomfortable when he told her to read a book titled ‘Where Did I Come From’, a book “about making babies and having sex”.[7] Although she could not remember her age at this time, she states she was in primary school.[8]
  1. [8]
    She also gave evidence about a further occasion when the defendant made her feel uncomfortable. She gave evidence that she and the defendant had a swim in the indoor pool at MLC.[9] It was dark as the lights had been turned off.[10] She states she was too scared to change in the change rooms in the dark,[11] and that the defendant told her to change on the side of the pool.[12] The defendant told her he would not look, and that he was “blind as a bat without [his] glasses” “so [she could] just get changed here”.[13] The complainant states that whilst she was changing she looked up and the defendant was completely naked and standing in front of her.[14] The complainant states the defendant motioned with his hand and it came in contact with her naked vagina.[15] She said “it seemed it was the back of the hand” and “it was a fleeting thing.[16] I thought maybe he did it on accident, but I – I – I didn’t understand how it happened.”[17]
  1. [9]
    In around 1987 to 1988, the defendant moved to Queensland and the complainant continued to reside in Victoria.[18] On occasions, the complainant came to Queensland to continue being coached by the defendant.[19] The complainant recalled that the defendant lived in two different places, including the address at Theodore Place, Molendinar.[20]
  1. [10]
    She gave evidence that on one occasion when she attended the Theodore Place residence she had been training “quite intensely” with him at his property.[21] She had severe soreness in her legs, which she said she could usually “push through”;[22] however, on this occasion, was unable to continue training.[23] She stated the defendant had a spa which had helped a bit, but was not enough on this occasion.[24] The defendant offered her a massage.[25] She said she initially resisted, but after the defendant persisted she agreed.[26] When asked by prosecution counsel “on this particular occasion, do you remember whether you were sore anywhere else other than your legs? No, just the legs.”[27]
  1. [11]
    She could not recall whether she had come out of the spa or shower, but could recall laying down on the floor in the room she was staying in, wearing underwear and a towel wrapped around her torso and tied in front of her chest.[28] She stated the defendant was kneeling beside her and commenced to massage her calves.[29] He then moved to her hamstrings, but she told him to stop as they were “too sensitive to touch”.[30] Her evidence was:[31]

So he then said, “Well, then, I’ll massage your quads if you want to turn over.”  So I turned over and I said, “Well, that’s fine, as long as it’s just my quads.”  And he said – he said, “I won’t – I won’t do anywhere else.”  And so I turned over and I still had my towel around me as he was massaging my quads.  And – and then, before I knew it, he’d – he’d removed the towel.  He’d opened the towel up and he was massaging my breasts.

  1. [12]
    When asked to describe how the defendant was massaging her chest, she said he was “massaging my chest” … “all over”.[32] She said he was using two hands on both her breasts, and that she closed her eyes hoping it was going to be over because she “just froze and … couldn’t move”.[33] She states she did not give the defendant consent to touch her breasts – only her legs.[34] She could not recall how long he touched her breasts for.[35] She could not recall him massaging anywhere else on her chest or shoulders.[36]
  1. [13]
    She said this incident occurred in 1988 or 1989 but that she could not really recall.[37] She stated she met her husband in June of 1989, and that the incident occurred prior to that.[38]
  1. [14]
    She stated she told her husband about the event in 2007.[39] She was undertaking a counselling course, and during the course, “there w[ere] some things coming up which [she] didn’t understand”.[40] She “went to see a counsellor and …realised… a lot of things”.[41]
  1. [15]
    The complainant and defendant exchanged email correspondence in late 2014.[42] The complainant told the defendant he crossed the professional boundaries as a coach through his inappropriate sexual behaviour towards her.[43]
  1. [16]
    The defendant replied stating “he was not a wise man and had been foolish at times.”[44] He stated he had been single all his life, and attributed this to his service in World War II, where he says he had been on a US merchant vessel which was one of the first ships to enter Nagasaki just ten days after the atomic bomb was dropped.[45] He was exposed to radiation which he says later caused him prostate problems, and lead to impotence, a non-functioning gallbladder, a severe thyroid condition and eye problems.[46] This caused him to lead a very lonely life, with the shame of being a non-functioning man that he felt he had to hide from the world.[47] He stated “I expect I was curious about the opposite sex, but nothing more, I was more curious about why I was as I was.”[48]
  1. [17]
    He then went on to say:[49]

“I do not remember the incident you mentioned .I was always very fond of you and you spent many times at my place over night .a couple of times with Toby while mum was at work Always in total safety .I would have protect you at any cost. So, I don”t know what to say. I would be so sad to know that you did not care for me and can only be sorry if you were hurt by me”.

  1. [18]
    She made a complaint to police in about May 2017.[50]
  1. [19]
    In cross-examination the complainant admitted she continued to be trained by the defendant for some years after the alleged incident, including as late as 1992 when she won the Australian championships.[51]
  1. [20]
    She identified herself, in company with the defendant and others, in a number of photographs that were tendered,[52] and acknowledged sending Christmas cards for many years in which she put personal notes thanking him very much for all the help he’d given her through the years.[53] When asked why she sent Christmas cards throughout the years, including after the alleged incident occurred, she stated “that’s what our family said, you send Christmas cards to people”.[54]
  1. [21]
    She was asked about her finding Jesus, which she said occurred in 2005.[55] She was asked “so all of this trauma which you blocked out and which you unlocked, that all unlocked after this conversation by you, where you’d found Jesus or he had found you; is that so?”[56] She replied “Well, I – I believe so.”[57]
  1. [22]
    She admitted under cross-examination that the pressure used by the defendant was the same as a “massage stroke”.[58]
  1. [23]
    The complainant was asked if in addition to leg soreness she had a shoulder contraction issue.[59] She said she could not recall muscle contraction or tightness in her right shoulder and restated it was only her legs of concern.[60] She denied she had asked the defendant for a massage, and confirmed that she had placed a limit on the massage: “I said I only wanted my legs massaged.”[61]
  1. [24]
    When questioned about getting treatment for her shoulder, she said she had sought treatment from a physiotherapist in 1991 for her arm.[62]
  1. [25]
    The complainant’s husband, gave evidence as a preliminary complaint witness. He gave evidence that he and the complainant had met around Australia Day in 1989 and formed a relationship soon after, in approximately February 1989.[63]
  1. [26]
    He said that in about 1998 or 1999, the complainant had told him that when she was around sixteen years of age, she was training with her fencing coach in Queensland.[64] After training, she was quite sore and the defendant offered to massage her.[65] He said “it was her expectation that she was only going to be massaged in respect of her legs and her shoulders.  He did offer to cover her breasts with a towel, which he did.  And so he proceeded to massage her legs and her shoulder, but, then, unexpectedly … he also massaged her breasts.”[66] He said she did not give him authority to do that.[67] He said she spoke to him again about the events in 2017 when she went to the police.[68]
  1. [27]
    When asked in re-examination whether the complainant first told him about the events “as late as 2007”, he said “[n]o, definitely not. No.”[69]
  1. [28]
    Defence counsel also asked him “[i]n terms of her life, do you remember her telling you this after she had converted to Christianity?”[70] He replied “[t]he first time she told me. No, definitely not. She wasn’t a Christian at the time.”[71]
  1. [29]
    Two audio records of police interview were entered into evidence and played for the court.[72] Both interviews took place at the defendant’s residence at Kenmore.[73] The first on 2 December 2017 between Senior Constable Anthony Williams, Sergeant Nicole Shannon and the defendant. The second on 4 March 2018 between Senior Constable Anthony Williams and the defendant.
  1. [30]
    The defendant acknowledged that for many years he was the complainant’s fencing coach, and that they had met initially at the German Club when the complainant was about eight.[74] He stated that he provided his services without charge, and had supplied equipment necessary for the complainant to compete at an elite level.[75]
  1. [31]
    He recalled moving from Victoria to Queensland in about 1987.[76] He recalled that the complainant came to Queensland multiple times.[77] Once for a training camp at Tallebudgera Creek,[78] and subsequently for intensive training at his home.[79]
  1. [32]
    He recalled the complainant complaining on one occasion about soreness as a result of her intensive training and that he agreed to give her a massage at her request.[80] He could not recall massaging her on the floor.[81] He said he had a proper massage table available due to him being a trained masseuse.[82] He also denied that he would have massaged her hamstrings, as he said you do not massage tendons.[83] He said these events would not have occurred before 1989 when he settled into Theodore Place.[84] When asked whether he massaged the complainant’s breasts, he said that he did not recall doing so and would only give a full body massage if asked for.[85] The defendant said he was like a father figure to the complainant.[86] He denied the allegation that he had inappropriately touched the complainant by replying “that’s bullshit”.[87] 
  1. [33]
    The defendant did not give or call evidence.
  1. [34]
    Addresses were made by both defence counsel and prosecution.

Directions

  1. [35]
    I set out the further directions which I must conduct these proceedings in accordance with a judge-only trial.
  1. [36]
    I must reach my verdict only on the evidence presented in court, including the exhibits.
  1. [37]
    In additional to facts provided by evidence, I may draw inferences, but only reasonable inferences, and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant.
  1. [38]
    The burden rests on the prosecution to prove the guilt of the defendant beyond reasonable doubt. There is no burden on the defendant, who is presumed to be innocent. I dismiss all feelings of sympathy or prejudice, regardless of who is involved and regardless of the nature of the allegations or charges.
  1. [39]
    I am required to assess the credibility and reliability of witnesses and I may accept or reject such parts of the evidence as I see fit in fulfilling a fact-finding function.
  1. [40]
    The defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and you must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
  1. [41]
    The complainant’s long delay in reporting the incident she says happened between 1 January 1988 and 31 December 1989 has an important consequence: her evidence cannot be adequately tested or met after the passage of so many years; the defendant has lost by reason of that delay means of testing and meeting her allegations that would otherwise have been available. By the delay, the defendant has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been made known to the defendant soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to look to call at a trial, evidence throwing doubt on the complainant’s story or confirming the defendant’s denial – opportunities lost by the delay. The fairness of the trial has necessarily been impaired by the long delay. It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, I was satisfied beyond reasonable doubt of its truth and accuracy.
  1. [42]
    I will need to scrutinise the evidence of the complainant with great care before I could arrive at a conclusion of guilt, because of:
  1. (1)
    the delay between the time the alleged incident occurred and the time the defendant of the complaint. In this case, between January 1988 and December 1989, and 31 October 2014 when the complainant sent an email to the defendant; and
  2. (2)
    the difference between the account of the preliminary complaint witness and the account of the complainant. Specifically, he states she first told him about the incident in 1998/99, opposed to 2007 when she says she first recalled the events as a result of counselling she was having at the time. Further, he states she told him that her legs and shoulder were massaged, whereas she states only her legs were consented to.

I should only act on that evidence if, after considering it with this warning in mind, and all the other evidence, I am convinced of its truth and accuracy.

  1. [43]
    In respect of the evidence of the preliminary complaint witness, that evidence may only be used as it relates to the complainant’s credibility. Statements by the complainant to the preliminary complaint witness are not proof of what actually happened, but may bolster the complainant’s credit because of consistency, or may create doubt about the complainant’s credibility or reliability because of inconsistencies between the accounts.
  1. [44]
    The prosecution lead evidence of two prior uncharged acts. The first being the providing of a book to the complainant titled ‘Where Did I Come From’ with animated pictures. The second being a touching of the complainant’s vagina/pubic area with the back of his hand while changing in the dark at the side of a pool after training one night. If I do not accept that evidence I should disregard it entirely. If I do accept that evidence, it can be of no use to me unless I can be satisfied that there is so strong a pattern, that the conduct on each occasion is so strikingly similar, that as a matter of common sense, and standing back, looking objectively at it, the only reasonable inference is that the same sequence of events occurred on this occasion. If I am not satisfied of that, I will put the evidence out of my mind. It would be entirely irrelevant to this case and it would be wrong to use it against the defendant. I must not proceed on the basis that if I thought he provided her the book and touched her pubic area with the back of his hand that he was generally the sort of person who might or would commit this offence.

In respect of the transcripts provided, I have used them as aide memoires, but I have relied on what I saw and what I heard as the evidence in this trial.

Submissions

Prosecution

  1. [45]
    The prosecution submitted that I would not accept the information provided to the police as being exculpatory. Indeed, I would not accept the evidence of the defendant on the basis that it was self-serving, on a number of occasions he changed his version, and it was unreliable. The defendant gave conflicting evidence about the period he spent in Nagasaki in World War II, and how long after he suffered medical problems. It was submitted that I would accept that the defendant was trying to position himself in respect of what he knew to be the complainant’s complaint from the emails sent to him before the allegations were put to him in the police interview.
  1. [46]
    He stated I would take into account statements made by the defendant that the complainant was never sore (as a result of his training skills). It was submitted that the statement by the defendant that he believed the complainant did not want to speak to him because he had not given money when she was sick was a deliberate lie. Further, that I would accept the complainant as an honest and truthful witness and take her account as true. That I would accept her statement that she only gave consent for the massaging of her quads and backs of legs.
  1. [47]
    I was urged not to put undue weight on the delay in making a complaint or the age of the complainant at factors affecting her reliability. Reference was made to the decisions of R v FGC and R x MBX in such regard. In regards to prejudice to the defendant arising from the historical nature of the offence, reference was made to the decision of R v Collins. It was submitted that this case was analogous, in that even if the complainant had come forward at the time, no medical or forensic evidence or other witnesses would have been available.
  1. [48]
    It was submitted that there was no reason to doubt that the defendant touched the complainant’s breasts given the defendant’s admissions. Further, that such touching was inexplicable as a therapeutic act. There was no justification for touching the complainant’s breasts in circumstances where the complainant was sixteen and the defendant sixty-two.
  1. [49]
    In all the circumstances, I would be satisfied beyond reasonable doubt that the defendant unlawfully and indecently assaulted the complainant.

Defence

  1. [50]
    Defence counsel submitted that it was a matter for the prosecution to prove their case beyond reasonable doubt. Ultimately, the issues for determination was whether I was satisfied that consent had been given, and in the circumstances of a massage, whether the act was indecent.
  1. [51]
    It was submitted that the defendant’s statements to police were equivocal, and that he had no memory of doing the things complained of. The defendant said that if limits had been placed on the massage then he would have complied with that. Further, that the complainant’s timings were wrong; she must have been older and at least sixteen.
  1. [52]
    The defendant stated he had only ever massaged the complainant once, and in no way could this be regarded as grooming. The complainant agreed under cross-examination that the pressure and movement to her breasts was the same as her legs. The defendant was an experienced masseuse, and there was no evidence that the massage he carried out on the complainant was inappropriate or indecent, judged by the standards at the time.
  1. [53]
    It was submitted that I would not accept the complainant as a creditable witness given the contradictory evidence of the preliminary complaint witness. The complainant had blocked out the events for eighteen years when the memory was unlocked. It was submitted that her memory would not have improved over time. It was some twenty-five years later when she sent her email to the defendant, and twenty-eight years later when she complained to police. It is now thirty-one years since the alleged offence. I would have further reason to doubt the complainant given the cards and photographs tendered showing a relationship years after the alleged event. The complainant appears happy in the photographs, and writes grateful notes in the cards.
  1. [54]
    It was submitted that I would accept the defendant as honest. He had indicated the touching of the breasts was in the realm of a full-body massage. The defendant had been open and frank with the police. When he received the email in 2014 he had not seen the complainant for twenty-four years.
  1. [55]
    It was submitted that I would have regard to issues of unfairness because of the delay. It was noted that the defendant was ninety-one years of age at the time of interview, and had recently suffered from some strokes.
  1. [56]
    Given the length of time since the alleged offence, the defendant was in a position where it was almost impossible to get records pertaining to the complainant’s shoulder or the Tallebudgera Creek camp. Consequently, the defendant was prejudiced. The defendant is now ninety-three years of age.
  1. [57]
    In all the circumstances, I would have difficulty accepting the complainant’s evidence and could not be satisfied of the defendant’s guilty beyond reasonable doubt. Accordingly, I would find him not guilty.

Discussion

  1. [58]
    It is not disputed that the complainant is female.
  1. [59]
    The complainant was born on 15 February 1972. The defendant was born on 28 January 1927.
  1. [60]
    The offence is alleged to have occurred between 1 January 1988 and 31 December 1989. The evidence was that the complainant was of the view that the incident most likely occurred in early 1988; however, it seems clear from the evidence that the defendant did not move into the property in Theodore Place until early 1989. It is not disputed that the events took place in that house. Consequently, it is most likely the events occurred in early 1989. This would mean that the complainant was very close to 17 years of age at the time of the alleged incident, and the defendant around 62 years of age.
  1. [61]
    Although the event is said to have occurred in 1989, the complainant continued to be trained by the defendant for some years and at least up to the Australian championships in 1992.
  1. [62]
    In photographic evidence tendered to the court, the complainant is seen to be not only in the company of the defendant after the event, but jovial and what appears to be completely at ease.
  1. [63]
    She says in her evidence that she repressed memory of the incident until 2007; however, her husband gave evidence that he was informed of the events by the complainant in 1998/99 and not later. She says that it was only after counselling in 2007 that her memory was restored.
  1. [64]
    Her husband also gives evidence that the complainant had sore legs and a sore shoulder, though the complainant denied having a sore shoulder in cross-examination.
  1. [65]
    She also said that it was in or around 2005 that Jesus had come in to her life and this was another catalyst to her remembering the events. Her husband said that Jesus was not yet in the complainant’s life when she told him about the events.
  1. [66]
    The complainant gave evidence of two prior uncharged acts. Namely, the defendant giving her a graphic although animated book about where babies come from, and a fleeting touch to her naked vagina with the back his hand at the MLC pool whilst they were changing.
  1. [67]
    It is said that these would tend to show the defendant had a propensity to commit the events the subject of the charge. If I accept these events took place, then I must be satisfied that the conduct on each occasion is so strikingly similar, that as a matter of common sense, standing back and looking objectively at it, that the only reasonable inference is that the events occurred on this occasion. For the following reasons, I am not so satisfied and put the evidence out of my mind.
  1. [68]
    The events occurred over a long period of time. The first event happened in public, or in the presence of the complainant’s brother at least. It was likely the complainant would show the book to her mother who was late picking her up. There appears to be no suggestion that the defendant suggested she keep the book a secret. The defendant vehemently denies giving her the book at all.[88]
  1. [69]
    The complainant herself says that she was not sure if the defendant had meant to touch her vagina at the side of the pool. It is possible it was an unintended act caused by the dark and the defendant having bad eyesight. In any event, it is difficult to draw the conclusion that this was an attempt to groom. Although the complainant and her brother stayed over at the defendant’s house on many occasions, nothing else is complained of.
  1. [70]
    At least to some extent the defendant regarded himself as a farther figure to the complainant. He trained her for free and supplied her with training and competing equipment at no cost. This was a point of contention for other students of his and caused discontent.
  1. [71]
    It is clear that there are inconsistencies in the complainant’s version. On the other hand, the defendant says he may well have touched the complainant’s breasts in the context of a massage. He admits that he did massage the complainant but denies the specific allegation. In any event, Mr Wilson for the defendant correctly submits that it is a matter for the prosecution to prove its case beyond reasonable doubt.
  1. [72]
    As submitted, the prosecution must prove beyond reasonable doubt that the defendant touched the complainant’s breasts without consent and that the act was indecent. The annotated Criminal Code as applicable in 1988 to 89 notes:

As to the meaning of the word “indecent”, see Purves v Inglis (1915) 34 NZLR 1051 where Sim J said at 1053: “The word ‘indecent’ has no definite legal meaning, and it must be taken, therefore, in this modern and popular acceptation… In the Standard Dictionary ‘indecent’ is defined to be anything that is unbecoming or offensive to common propriety. See also Stokes v Bragg [1955] SASR 311. The word “indecent” should be construed in its ordinary and popular meaning.  Indecency must always be judged in the light of time, place and circumstance.  See R v Dunn [1973] 2 NZLR 481.

  1. [73]
    I accept the defendant as being a creditable witness. While there are some inconsistencies in his evidence about events that happened a long time ago (1945), he spoke to police on two occasions freely and without reservation. In my view, he answered police questions as honestly as he could, with a surprising level of clarity given the events occurred approximately 30 years before. On occasion his memory failed him, but this can be attributed to his advanced age (90 and 91 years) and state of health. He also gave a substantial amount of evidence which assisted with the investigation. He freely accepted that the massage occurred, but not in the way described by the complainant. He stated that if any restriction were put on the massage, he would have complied.
  1. [74]
    Given the following elements of the complainant’s evidence is contradictory with the evidence of her husband, I do not regard her a witness of credit:
  1. (a)
    Whether she required a massage for her legs alone or her shoulder as well; and
  2. (b)
    Whether she first told her husband in 1998/99 or 2007.
  1. [75]
    In those circumstances, I am also not satisfied beyond reasonable doubt that consent was given only to massage of the legs. I also do not accept beyond reasonable doubt that the touching of the complainant’s breasts during the massage occurred in the way described by her.
  1. [76]
    Further, the questions which remain unanswered are: to what extent did a massage involving the shoulder require touching of the breasts or breast area – to some extent or at all? Would it be appropriate to touch the breasts or breast area while massaging for the relief of pain in the shoulder? None of these issues were explored by the prosecution.
  1. [77]
    In these circumstances, where I have not accepted the complainant’s evidence about the massage, I am not satisfied beyond reasonable doubt that the touching of the complainant’s breast, if it occurred at all, was indecent.

Verdict

  1. [78]
    I find the defendant not guilty of count 1 on indictment number 1484 of 2019. Accordingly, he is discharged.

Footnotes

[1]Criminal Code 1889 (Qld) s 350.

[2]Exhibit 3.

[3]Transcript at 1-6 ll 9-10.

[4]Ibid at 1-6 ll 10-12.

[5]Ibid at 1-6 l 16.

[6]Ibid at 1-7 l 47.

[7]Ibid at 1-7 l 40.

[8]Ibid at 1-7 ll 42-43.

[9]Ibid at 1-8 ll 16-21.

[10]Ibid at 1-8 l 22.

[11]Ibid at 1-8 ll 21-22.

[12]Ibid at 1-8 ll 24-25.

[13]Ibid at 1-8 ll 37-38.

[14]Ibid at 1-8 ll 40-41.

[15]Ibid at 1-8 ll 46-47.

[16]Ibid at 1-9 ll 2-4.

[17]Ibid at 1-9 ll 4-5.

[18]Ibid at 1-9 ll 11-16.

[19]Ibid at 1-9 l 20.

[20]Ibid at 1-9 ll 25 and 46.

[21]Ibid at 1-10 ll 5-7.

[22]Ibid at 1-10 l 8.

[23]Ibid at 1-19 l 6.

[24]Ibid at 1-19 ll 13-15.

[25]Ibid at 1-19 l 17.

[26]Ibid at 1-19 ll 21-22.

[27]Ibid at 1-10 ll 28-29.

[28]Ibid at 1-32 ll 38-42.

[29]Ibid at 1-11 l 4.

[30]Ibid at 1-11 ll 4-7.

[31]Ibid at 1-11 ll 40-46.

[32]Ibid at 1-12 ll 6 and 9.

[33]Ibid at 1-12 ll 17-18.

[34]Ibid at 1-12 ll 20-21.

[35]Ibid at 1-12 l 27.

[36]Ibid at 1-12 l 37.

[37]Ibid at 1-20 l 10.

[38]Ibid at 1-20 l 12.

[39]Ibid at 1-13 ll 39-40.

[40]Ibid at 1-13 ll 42-43.

[41]Ibid at 1-13 ll 43-44.

[42]Ibid at 1-14 ll 20-21.

[43]Exhibit 1.

[44]Exhibit 2.

[45]Exhibit 2.

[46]Exhibit 2.

[47]Exhibit 2.

[48]Exhibit 2.

[49]Exhibit 2.

[50]Transcript at 1-15 l 29.

[51]Ibid at 1-17 ll 16-17.

[52]Exhibits 6 to 8.

[53]Exhibits 9 and 10.

[54]Transcript at 1-21 ll 21-22.

[55]Ibid at 1-22 l 17.

[56]Ibid at 1-22 l 25-27.

[57]Ibid at 1-22 l 27.

[58]Ibid at 1-28 ll 7-12.

[59]Ibid at 1-33 l 33.

[60]Ibid at 1-33 ll 34-35.

[61]Ibid at 1-33 l 47.

[62]Ibid at 1-35 l 44, 1-36 l 2.

[63]Ibid at 1-38 l 36-37, 1-38 ll 43-44.

[64]Ibid at 1-39 ll 12-13.

[65]Ibid at 1-39 ll 14-16.

[66]Ibid at 1-39 ll 16-20.

[67]Ibid at 1-29 ll 30-31.

[68]Ibid at 1-29 ll 34-35.

[69]Ibid at 1-40 l 32.

[70]Ibid at 1-40 ll 34-35.

[71]Ibid at 1-40 ll 35-36.

[72]Exhibits 4 and 5.

[73]Ibid.

[74]Exhibit E at 12 l 23.

[75]Ibid at 64 ll 52-58, Exhibit at F 7 ll 11-13. 

[76]Exhibit E at 32 l 26.

[77]Ibid at 33 l 6.

[78]Ibid at 36 ll 41-43.

[79]Ibid at 37 l 13.

[80]Ibid at 40 l 3.

[81]Ibid at 40 ll 31-32.

[82]Ibid at 40 ll 40-41.

[83]Ibid at 41 ll 14-20.

[84]Ibid at 65 ll 3-24.

[85]Ibid at 43 l 57, 42 ll 20-23.

[86]Ibid at 7 ll 4-5.

[87]Exhibit G at 26 l 49.

[88]Exhibit E at 23 l 11.

Close

Editorial Notes

  • Published Case Name:

    R v OJH

  • Shortened Case Name:

    R v OJH

  • MNC:

    [2020] QDC 71

  • Court:

    QDC

  • Judge(s):

    Rinaudo AM DCJ

  • Date:

    01 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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