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- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Spreadborough  QCA 291
SPREADBOROUGH, Peter Archibald
CA No 245 of 2019
DC No 2396 of 2018
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 26 August 2019 (Dearden DCJ)
18 December 2020
22 July 2020
Sofronoff P and Philippides JA and Davis J
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was charged with one count of indecent treatment of a child under 12 and a second count of indecent treatment of a child under 16 – where after a trial the jury found the appellant not guilty on the first count and guilty on the second count – where the appellant was a masseur – where the complainants were two brothers who had been taken to the appellant’s premises for a massage – where the appellant submits that the two counts were improperly joined – where the learned judge in their ruling identified the following factors as showing that the appellant’s alleged behaviours were similar in each case: both complainants were boys, the offences were both alleged to occur on the appellant’s premises, they were alleged to occur during a massage and both offences were committed while the boys’ parents were absent – whether the learned judge erred in refusing the application for separate trials
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant gave evidence at trial – where in his own evidence the appellant neither admitted nor denied that he was gay – where the evidence of the two child complainants was that they perceived the appellant to be gay – where defence counsel put to the jury a theory that the complainants had fabricated their complaints out of embarrassment – where the appellant submits that a statement made by the prosecutor in his closing address about the appellant being gay was unfair and carried with it the risk of introducing prejudice and impermissibly enhancing the complainant’s credibility – whether the prosecutor’s statement rendered the trial unfair by its effect on the jury – whether a miscarriage of justice attended the trial
Hughes v The Queen (2017) 263 CLR 338;  HCA 20, followed
R v McNeish  QCA 191, followed
Velkoski v The Queen (2014) 45 VR 680;  VSCA 121, disapproved
M J Jackson for the appellant (pro bono)
D C Boyle for the respondent
Fisher Dore for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
- THE COURT: The appellant was charged with one count of indecent treatment of a child under 12 and a second count of indecent treatment of a child under 16. A jury found him not guilty on the first count and guilty on the second count. The appellant appeals his conviction on two grounds. By his first ground the appellant contends that the two counts were improperly joined. By his second count the appellant complains about a comment made by the prosecutor in the closing address.
- The following facts are drawn from the evidence of the two complainants and their parents.
- The appellant was a masseur. Angus (a pseudonym) and his older brother Hugh (also a pseudonym) were boys who participated in field sports at school. In July 2016 Angus was 11 years old. Angus’s parents had taken him several times for massages by the appellant. During that July, Angus’s father took him to the appellant’s premises for a massage as part of preparations for a forthcoming cross-country event. While Angus underwent treatment, his father went to do an errand, leaving his son alone with the appellant. Angus was wearing board shorts. He lay on his stomach while the appellant massaged his quadriceps muscle while holding up Angus’s leg. The appellant moved Angus’s shorts and underwear out of the way and massaged a muscle at his groin. He then moved Angus’s penis to one side and, while doing this, he squeezed it for about 20 seconds. This was count 1. Angus related other instances when the appellant had done the same thing to him. These other acts were uncharged. Angus said that he never said anything on these occasions because he was scared.
- In August 2016 Angus’s brother Hugh was 13 years old. His mother took him to the appellant for a massage to treat some back pain. As in Angus’s case, Hugh’s parent left him alone in the appellant’s hands while she went to do an errand. Hugh lay on his back while the appellant massaged Hugh’s leg. The appellant explained why he was doing this despite the area that needed treatment being Hugh’s back. He said that it was “all connected”. The appellant put a small towel over Hugh’s face, blocking his vision. He then stroked Hugh’s leg and worked his hands up to Hugh’s groin. He slowly pulled down Hugh’s shorts and began to stroke Hugh’s penis and pull back the foreskin. He then massaged Hugh’s hip and moved back to play with his penis.
- Hugh was very upset after this. When he got home he was tearful and told his mother what the appellant had done.
- Mr M J Jackson of counsel, who appeared for the appellant, submitted that these two charges should not have been joined. He submitted that the only feature common to both offences was that each of them was “opportunistic”. It was submitted that the act in count 1 was “squeezing” and the act in count 2 was “stroking” over a longer period. Mr Jackson said that although the appellant was said by Angus to have made a “grunting sound” after touching him, Hugh did not say that the appellant made any similar sound. He pointed out that while Hugh was lying on his belly when the offence was alleged to have been committed, Angus was lying on his back and, while Hugh said that a towel was put over his eyes, Angus did not say that had happened to him.
- This submission must be rejected.
- Dick SC DCJ ruled that the joinder was not improper because the evidence on each count was admissible on the other. In R v McNeish this Court held that evidence of uncharged acts will be admissible if, for example, it demonstrates a tendency on the part of the alleged offender to act in a particular way, proof of which increases the likelihood that the account under consideration is true. In Hughes v The Queen the evidence of uncharged acts proved that the appellant had a sexual interest in girls under the age of 16 and that he had a willingness to act upon that interest by committing sexual offences against such girls even in circumstances where there was a high risk of detection. In McNeish itself, the evidence was that the appellant had used the advantage of his position as a family friend and babysitter of three sisters aged between four and 10 years to commit indecent assaults upon them. The evidence of each set of offences was admissible to prove the other sets of offences because the alleged behaviour of the appellant was so similar in each case that it tended to prove the greater likelihood that each distinct set of offences had been committed. The appellant in that case lived next door to the complainants. The complainants were sisters who were all pre-pubescent. Each of them was accessible to the appellant for the same reason, the appellant’s position of trust within their family and his role as their occasional babysitter.
- In this case, Dick SC DCJ correctly identified the following factors as showing that the appellant’s alleged behaviours were so similar in each case that evidence about what Angus said the appellant had done to him would render more likely that Hugh was telling the truth about what the appellant had done to him:
- (a)Both complainants were boys;
- (b)The offences in each case were alleged to have been committed at the appellant’s premises;
- (c)The offences were alleged to have been committed during a massage;
- (d)Both offences were committed while the boys’ parents were conveniently absent.
- To this list might be added that both boys were pubescent and in each case the object of the appellant’s attention was the boy’s penis.
- The substance of the appellant’s submission was that the precise details of the alleged offending were different in each case. This submission is flawed because it seeks to concentrate attention exclusively of what the Victorian Court of Appeal called the “operative features” of the criminal acts. McNeish, following Hughes, is binding authority that such an approach is wrong. The comparison that must be undertaken is that which was undertaken by Dick SC DCJ and which accords with the authority of this Court in McNeish, R v Watson and also, as we have said, Hughes.
- This ground should be rejected.
- The appellant also complains about the following statement which the prosecutor made during his closing address to the jury:
“Now, there’s this hypersensitive and – to homosexuality put before you as well as some sort of motive to lie. Mr Spreadborough is gay, of course. There’s no issue with that. And this family doesn’t seem to be some sort of religious fanatics. They’re not posting on Instagram that all homosexuals should go to hell like Israel Folau. You saw them come in. Some of them took affirmations…” (emphasis added)
- The appellant’s argument, as put in his written outline, was this:
“36. The comment was unfair. The appellant was not cross-examined by the learned Crown Prosecutor about his sexuality. There was otherwise no positive evidence about the appellant’s sexuality. Indeed, the appellant gave evidence about not having a “husband”, that he did not discuss his “private life” or his “relationship status” with any of the [complainants] or with [the complainant’s mother]. This was confirmed by the evidence of [the complainants’ mother]. The effect of the evidence was that [Angus] and [Hugh] believed the appellant was gay and would joke about it.
43. The prosecutor’s comment confirmed the appellant’s sexuality. It had the real risk of impermissibly enhancing [Hugh’s] credibility when the jury considered whether (a) he had a motive to lie and (b) whether the [sic] was any collusion between the complainants. The comment occurred in a trial where it was alleged a mature man indecently assaulted two young boys. Emotions were already highly charged. The comment may have also introduced some irrelevant prejudice. The jury therefore could have convicted the appellant by following an impermissible and illogical path of reasoning.”
- During the course of Hugh’s interview with police, the recording of which was played to the jury, he said the following things:
“well he’s definitely gay cause he’s got a gay voice, he talks about his husband”.
- And later:
“… [one of Hugh’s friends] says he’s a gay massage therapist, and we sort of laughed and then [redacted] my friend said oh yeah [Hugh] didn’t you have an incident there a few years ago, and I sort of didn’t really respond”.
- And also:
“well there’s quite a lot of gay people at my school and its quite a distinct um voice”.
- Angus made similar comments during his own police interview:
“… Yeah when he talks he sounds pretty gay. Like, not trying to say that offensively but that’s just what I thought”.
- Not only was this evidence not the subject of any objection by the defence, but it was used to gain advantage by defence counsel. There was the following exchange in cross-examination:
“All right. Now, I just want to go back, [Hugh]. When you talked to police in May 2018, you were asked to describe Peter. Do you remember that?---Yes.
And you told police that Peter’s gay?---Yes.
Do you remember saying that?---Yes.
In fact, when you were asked to describe him, that’s the first thing that you say?---Yes.
All right. And you said to police:
He’s definitely gay, because he has a gay voice.
Can you describe what you mean by “a gay voice”?---It’s very hard to describe, but there’s a few gay people at my school, so I know what they sound like.
Okay. And you know that they’re gay because of their voice?---Not always. There’s other factors.
Okay. All right. You also said to police that you knew he was gay because he talks about his husband?---Well, he mentioned “partner”, so I assumed it was husband.
What did he say about his husband or partner?---I don’t remember.
Okay. I suggest he’s never spoken about a husband?---I disagree.”
- Later there was the following questioning:
“All right. Do you agree with this statement: you were uncomfortable being massaged by Peter because he’s gay?---I disagree. I felt uncomfortable because of the way he massaged.
Okay. So you joked and laughed with your brothers about Peter being gay, didn’t you?---I don’t remember.
Do you remember you and [your older brother] having a laugh about Peter having a gay voice?---No. I don’t remember.
You don’t remember, or it didn’t happen?---I don’t remember.
Okay. Did you joke and laugh with your friends at running about Peter being gay---?---Yes.”
- A similar line of cross-examination was taken with Angus also:
“Because you said to police, [Angus], that Peter:
Sounds pretty gay when he speaks.
Do you remember saying that?---Yeah. Yep.
How does he sound pretty gay?---I don’t know. He just extends his – like, his tone, and he extends all his words. I just – that’s what I picked up myself, so.
Okay?---I don’t mean to be offensive, but that’s just what I think.
No, that’s all right. So – but you also laughed with your brothers about Peter being gay, didn’t you?---Yeah.
With [redacted], your eldest brother?---No, not that I can remember. No, not – I can’t really remember.
You don’t remember laughing with [your older brother] about Peter being gay?---No.
You didn’t laugh with [your older brother] about Peter having a gay voice?---No, not that I can remember.
Okay. [Your older brother] didn’t make jokes to you about it?---No, I don’t think so.”
- In his own evidence the appellant neither admitted nor denied that he was gay. He denied having a husband or a partner.
- During argument about the content of the summing up, the prosecutor foreshadowed that he would be making submissions to the jury about the motive for the complainants to lie which the defence sought to establish by the cross-examination that has been referred to, namely, “that they didn’t like him because he was gay”. The learned trial judge foreshadowed that defence counsel would undoubtedly be dealing with that subject in her own address to the jury and defence counsel confirmed that she was going to do so.
- Consistently with her stated intention, defence counsel put to the jury a theory that Hugh was embarrassed in front of his friends who had learned about his allegation. She said:
“I suggest you can’t exclude – and the Crown can’t exclude the possibility that [Hugh’s] been – what must have been embarrassed by a discussion like this at school in front of a group of his friends. He described being embarrassed and not wanting to talk about it and that they kept asking him questions. This is also in the context of this ongoing discussion between all these boys and all the members of the running group – it seems to be a running joke this – this gay male massage therapist that they all joke and talk about.
All the boys – it seems to be a running joke and the boys just seemed so focussed on it that you can’t exclude that [Hugh] at that point in time has come up with further details of this indecent assault and that the – that’s the allegation as it forms at that point in time and that’s the allegation that’s been brought to police. So I’ll talk to you in some detail about the timing and what complaints are made to whom at what point in time.”
- Later, she submitted:
“What all of that leads into is something that you’ve heard quite a bit of in this trial, which are these “Peter’s gay” comments. The two boys – [Angus and Hugh] – I suggest you can conclude, they’re hypersensitive to the prospect that their massage therapist might be gay. They’re hypersensitive to it. [Hugh], when he’s interviewed by police, he’s asked to describe what happened on the 6th of August 2016. He says:
Peter the massage therapist. He’s gay.
That’s very early on in his interview. He’s then asked – shortly after that, he’s asked by the police officer to describe Peter. She says to him:
Okay. So you’ve called him Peter before. Tell me everything that you know about Peter.
And the first thing he says is:
Well, he’s definitely gay, because he’s got a gay voice. He talks about his husband.
It’s the very first thing that he says.”
- Defence counsel concluded on this point as follows:
“So what I suggest to you out of that is that you would have some doubts about excluding this possibility – because that’s what the Crown has to do: exclude this possibility – that [Hugh] has been extremely embarrassed by this incident coming out in school in front of a group of his school friends; that he has had some unknown incident with the gay, male massage therapist that all the boys joke about – all the brothers, people at running, they all joke about him – and even the incident in May 2018, at school, the way it’s described is that they all laughed about the massage therapist. So all the boys joke amongst themselves about it and the boys seem so focused on him that then, when he’s confronted with this at school, he has come up with this heightened story of this indecent assault. And I suggest that’s a reasonable hypothesis that the Crown simply can’t exclude, given the inconsistencies in who was told at what time; when a complaint’s made. You can’t exclude that, members of the jury.”
- Obviously, the prosecutor tried to meet this argument that the complainants had a motive to lie founded in their supposed embarrassment at having received massages from a gay man by the argument quoted in  above.
- The complaint has no substance. It is true that the nature of the appellant’s sexuality was not in issue at the trial. Its relevance was strictly limited to the fact that the complainants perceived the appellant to be gay and the defence used that fact to their advantage to support a possible motive for them to fabricate their allegations. However, the appellant’s actual sexuality was not in issue, nor was it material. Indeed, in the context of evidence of the complainants’ multiple assertions about their belief on the subject, and the cross-examination directed to that matter, it is significant that defence counsel saw no need to maintain a rigid distinction between perception and reality (whatever that might have been). This appears from part of her closing address set about above, during which she referred to Angus:
“And [Angus] … did accept, though, that he was uncomfortable being massaged near the groin by Peter and he accepted that he was uncomfortable because he was gay. That was his assessment of it.”
- There was a similar lack of conformity in the following part of the address:
“… that [Hugh] has been extremely embarrassed by this incident coming out in school in front of a group of his school friends; that he had had some unknown incident with the gay, male massage therapist that all the boys joke about”.
- As we have said, whether or not the appellant was gay was irrelevant to the trial. What was material for the defence case was the complainants’ state of mind about that subject and that was not a matter that depended upon the truth about the appellant’s sexuality. Nor could the defence be disadvantaged (or advantaged) by the truth being revealed.
- In any event, whatever might have been the possible effect upon the jury caused by the prosecutor’s statement, that effect could not have caused any prejudice. It is understandable why the statement was not the subject of any complaint at the trial or any application to the judge to correct it, if it was thought to be material. The appellant has not established that there has been a miscarriage of justice.
- This ground should be rejected.
- The appeal should be dismissed.
 QCA 191.
(2017) 263 CLR 338: decided in relation to a statutory regime but that is not material for present purposes.
Velkoski v The Queen (2014) 45 VR 680.
See McNeish, supra, at  to .
 QCA 82.
She said that [Angus] and [Hugh] may have said, “I think he’s gay. And that’s their decision. I wouldn’t event know if Peter was gay, and really, I don’t care at all. I don’t think that’s actually got anything to do with what Peter did, whether he’s gay or not”.
See for instance R v M  2 Qd R 68.
- Published Case Name:
R v Spreadborough
- Shortened Case Name:
R v Spreadborough
 QCA 291
Sofronoff P, Philippides JA, Davis J
18 Dec 2020
- White Star Case:
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|Appeal Determined (QCA)|| QCA 291||18 Dec 2020||-|