The Queen v K[1998] QCA 262

COURT OF APPEAL

McMURDO P

MACKENZIE J

HELMAN J

CA No 168 of 1998

THE QUEEN

v.

K Appellant

BRISBANE

DATE 14/08/98

JUDGMENT

THE PRESIDENT:  The appellant was convicted of four counts of indecently dealing with a girl under the age of 14 years in the District Court at Maroochydore on 13 May 1998. The sole ground of appeal against conviction is that the verdict of the jury in the circumstances was unsafe and unsatisfactory.

The expression "unsafe and unsatisfactory" has become a common way of referring to the ground of appeal set out in section 668E(1) of the Criminal Code: namely, that the Court on an appeal against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

In R v. Gipp, unreported, HCA, delivered 16 June 1998, Gaudron J said at paragraph 17, "The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that although there was evidence to sustain a verdict of guilty, the jury ought nonetheless have entertained a reasonable doubt as to guilt."

It is necessary for the Court to examine the whole of the evidence in deciding whether a verdict in a particular case is unsafe and unsatisfactory.

The offences occurred between 1 June 1986 and 31 December 1989. The complainant was born on 7 March 1979. She was 19 at the time of trial and between seven and 10 when the offences occurred.

Count one is particularised in this way:  the complainant was at the house of D in Mount Isa. All the adults in the house went out except the appellant. The complainant went to sleep and later woke up to find the appellant interfering with her in the genital area.

The complainant gave evidence consistent with the particulars. She said there were four girls sleeping in the room. She went out to get a drink of water wearing only a top without knickers. The appellant saw her. She returned to the bedroom to sleep. She was later awakened by the appellant wriggling fingers inside her vagina. Her top was off. He said, "It's a secret, don't tell anyone. It's something between you and me".  When she woke in the morning her top was on again. She said she was eight and in grade two when this incident occurred.

The first inconsistency complained of by the appellant is that she was inconsistent as to her age in respect of count one. It is by no means clear from the record that the complainant accepted that she told police during a phone-in for victims of sexual abuse in 1996 that she was eight or nine at the time. In any case the complainant's mother, Mrs B, recalled first meeting the appellant in 1986 and that the appellant shared a house with D. Towards the end of 1986 she shared babysitting arrangements with D by each looking after the other's children whilst they worked.

The appellant could not recall any night when he was left alone to babysit these children and denied any improper conduct. Although the complainant was unsure as to the dates, her evidence combined with that of her mother is certainly sufficient, if it is accepted, to establish the incident occurred as particularised.

The appellant's second allegation of inconsistency is that the complainant had previously alleged the appellant had forced her to touch his penis and this was inconsistent with her evidence in Court. It was put to the complainant that when she rang the police phone-in on 5 September 1996 she said that the appellant forced her to touch his penis. She agreed the appellant did not force her to touch his penis. The record clearly shows she said she told the police that the appellant placed her hand on the outside of the crotch area. No evidence was called by the defence to contradict her evidence on this point. This was referred to in the Judge's summing-up. No such inconsistency is established.

The complainant gave generalised evidence of the appellant interfering with her, as in count one, on a regular basis four or five times a week at night. This was adequately dealt with in the learned trial Judge's summing-up by careful directions to treat it only as evidence of background relationship of the parties but not to treat it as propensity evidence. He also directed them correctly that if they accepted it as true, they could use it as evidence showing an unhealthy interest or guilty passion in respect of the complainant.

Count two occurred on a date unknown between 1 January 1987 and 1 July 1988 at Mount Isa. The provided particulars are that whilst the appellant and the complainant's mother were living together in a sexual relationship on the night of a send-off party for M, the complainant went to sleep and was awakened to find her knickers were down and the appellant was beside her interfering with her in the genital area.

The complainant's evidence was that she was sleeping in a bedroom with her sisters. They slept on individual mattresses on the floor to make the most of the only air-conditioning in the house. She awoke to find the appellant on the mattress with her. Her knickers were pulled down to her ankles and her legs were spread six to eight inches apart.   The appellant's fingers were inside her vagina. She asked him to stop but he did not so she stood up and went to the toilet.

She particularly remembered this incident as it occurred after a party at the Golden Dragon Restaurant for M when she was in grade three in 1987.

The complainant's mother, Mrs B, gave evidence that she remembered the send-off at the Golden Dragon Restaurant for M in about May, 1987. Her daughter went to bed at about 9.30 or 10 and she went to bed at midnight. The appellant was still up. She woke up during the night and saw the appellant asleep on the floor beside the complainant. He said he was sleeping there because it was hot and the room was air-conditioned. She then slept in the air-conditioned room herself.

In cross-examination the complainant said she did not tell her mother about this incident because the appellant told her he would kill her if she told anybody. In her statement to police she indicated this threat was made on a separate later occasion. These inconsistencies were no doubt pointed out to the jury by defence counsel and explained by prosecuting counsel as understandable, bearing in mind the incident occurred over 10 years ago when she was seven or eight years old.

Count three is alleged to have occurred between 1 February 1988 and 31 March 1988 at Maroochydore. The particulars provided are that just prior to the complainant's ninth birthday the complainant was in the bathroom and needed help to get out of the bath. She called for help and the appellant came into the bathroom and assisted her, rubbing his hand in the area of her genitals.

The appellant gave evidence denying the incident. He recalled the complainant calling for help and both he and her mother ran into the bathroom to assist. He did not improperly touch the complainant.

The complainant's mother remembered a time in about February 1988 when the complainant had a broken arm and needed assistance in the bath. She recalled an incident when the complainant called out to her. She went into the bathroom and saw the complainant in the bath and the appellant near the door.

The complainant's evidence was that after her sister's birthday on 2 February and before her birthday on 7 March when they had just moved to Maroochydore at the end of 1987 she had broken her elbow skating and needed assistance getting in and out of the bath. She called for assistance to get out of the bath and the appellant came in to help her. As he helped her out of the bath he rubbed his left hand on the outside of her vagina up towards her stomach causing her to gasp and her mother came into the bathroom.

Her mother eventually helped her out of the bath tub after the appellant had improperly touched her. At the committal proceedings she said it was the appellant who helped her out of the bath tub. She said her version at the committal was incorrect.

In her statement the complainant said it occurred after her ninth birthday. When this was pointed out she re-affirmed it occurred before her ninth birthday.

The appellant alleges these are significant inconsistencies. In my view they are able to be explained by the lapse of time.

The appellant and the complainant's mother broke up and the complainant and her family moved to Gympie. On the last occasion the appellant visited the family in Gympie he stayed overnight in 1989 just after school had started. Count four is alleged to have occurred between 1 January 1989 and 31 December 1989 at Gympie.

Particulars provided are that the complainant and the appellant were alone at the house and the appellant said, "Come over and say hello."  She went over to him and was touched by him in the area of the genitals outside her clothing. The complainant gave evidence that this incident occurred. The appellant denied it. The evidence of the complainant's mother confirmed the approximate date of the incident and the presence of the accused at the Gympie home at that time.

No formal complaint was made by the complainant to police until early 1997. Some explanation was given by the complainant as to the reasons for that. It is the defence submission that the combination of the inconsistencies and inherent improbabilities that I have mentioned, combined with the lack of fresh complaint, were such that the verdict would be unsafe and unsatisfactory in the circumstances.

All the inconsistencies identified by the appellant, whether examined individually or collectively, are capable of being accepted by the jury as consistent with her being a credible witness, bearing in mind she was recalling incidents that happened 10 or 11 years ago when she was seven or eight years of age. The jury had the benefit of observing both the complainant and the appellant giving evidence and seeing them cross-examined at length by experienced counsel.

During the 1986-1987 summer Mrs B recalled the complainant first started having trouble with a red vagina and Mrs B took her to a Mount Isa doctor. A police officer later gave evidence that the relevant medical records had been destroyed by medical practitioners after seven years. This vaginal problem cleared up towards the end of 1989.

Whilst the complainant had a broken arm, the complainant slept with Mrs B and she recalled an incident when she and the complainant were lying on a mattress and the appellant was lying on the floor. She was between the appellant and the complainant. The appellant had his hand over her, resting on her, and his hand was between the complainant's naked legs with his thumb sitting on the crotch. The complainant appeared to be asleep, as did the appellant. Mrs B hit his hand away and confronted him but he denied any intentional wrongdoing.

He gave evidence that he knew nothing about this incident until he was woken up and abused by the complainant's mother. After this incident the complainant, the appellant and Mrs B saw a psychiatrist before Mrs B ended her relationship with the appellant. The family then moved to Gympie where count four occurred.

The learned trial Judge refused to allow the Crown Prosecutor to cross-examine the appellant as to whether there was any animosity between the complainant and the appellant in case it infringed the principles stated in R v. Palmer (1998) 72 ALJR 254. The learned trial Judge gave careful directions as to the use to be made of the evidence from the complainant relating to sexual impropriety by the appellant on other than the specific offences charged. The offences charged were each separate and discrete events able to be particularised in some detail.

The learned trial Judge told the jury that in all but one respect the evidence of the complainant was not supported by other evidence. The only independent evidence capable of supporting the complainant's evidence, he said, was that of her mother waking to find the appellant's hand in the naked crotch of the complainant.

He rightly told them, only if they were satisfied that that evidence was true and that it demonstrated a deliberate act on the part of the appellant, not something he had inadvertently done in his sleep, could they treat it as independent evidence supporting the complainant.

He told them that if they were satisfied that it was true and a deliberate act they could treat it as evidence supporting that of the complainant. There was no complaint about this direction at trial or now.

The jury may well have accepted the evidence of the complainant and rejected the evidence of the appellant, especially if they accepted the evidence of the complainant's mother as to what she observed one night when the complainant had a broken arm as being a deliberate act. If so, they were quite entitled to convict. The inconsistencies pointed out by the appellant's counsel are understandable in the circumstances.

I can see no inherent improbabilities in the story of the complainant.

The complainant was very young when these incidents occurred. They occurred at a time when awareness of such offences was not as great as it now is. The appellant was an adult who was important to her mother. She gave an explanation that, at some stage, during the course of these offences she had been threatened by the appellant. In those circumstances the lack of fresh complaint is no deterrent to a jury convicting.

The defence case was fully placed before the jury in the learned trial Judge's summing-up. After carefully reviewing the evidence it cannot be said that it was not properly open for the jury to be satisfied of the appellant's guilt beyond a reasonable doubt.

I note, however, that it is desirable for trial Judges, in cases of this sort, to give a warning to juries of the difficulties faced by accused persons forced to meet allegations of sexual abuse from many years ago. It is difficult for an accused person, in such a case, to do anything other than deny the charges. The opportunity for the accused person to call positive evidence such as alibi evidence which might establish their innocence is largely lost, always remembering, of course, there is no onus on the accused to establish his innocence.

The learned trial Judge's summing-up was balanced and fair and clarified the issues between the Crown and the defence for the benefit of the jury. The defence case, as I have said, was fully and carefully put to the jury.

In those circumstances, the absence of such a warning is not significant, although it is desirable. After reviewing the evidence it cannot be said the jury should have entertained a reasonable doubt as to guilt or that the verdict was unreasonable and cannot be supported having regard to the evidence. I would dismiss the appeal.

MACKENZIE J:  Yes, I agree. I would only add that with respect to the remarks made by the President about the desirability of a warning about the difficulties that an accused person faces when a complaint is made some time after the relevant events, it was not suggested, in this case, that any miscarriage of justice had occurred as a result of the failure to do so. Otherwise I agree with the orders that are proposed.

HELMAN J:  Yes, I agree with the order proposed by the President and with the reasons she has given for that order.

THE PRESIDENT:  The applicant also seeks leave to appeal against a sentence imposed of two years' imprisonment. The offences occurred when the complainant was seven to eight years' old. She was the daughter of a woman with whom the applicant had formed a relationship. Two offences involved the insertion of a finger into the child's vagina. The victim impact statement tendered before the sentencing Judge indicated the offences had a significant effect on the complainant. The applicant cannot get the benefit of a plea of guilty or the remorse shown by such a plea, the complainant having been cross-examined at committal and at trial.

On the other hand, the applicant has a good work record and has no relevant prior convictions. He is now 34 years old and was 23 or 24 when these offences occurred. There has been substantial delay between the commission of the offences and sentence through no fault of the applicant.

He has, apart from some minor offences of dishonesty committed in 1988, stayed out of trouble since these offences occurred. The Court below was told that he was himself molested as a child by a doctor, although no other details were given.

A review of comparable sentences convinces me that bearing in mind the matter was not a guilty plea where remorse was shown at an early stage this sentence is not outside the appropriate range. I would dismiss the application for leave to appeal against sentence.

MACKENZIE J:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The orders are appeal dismissed, application for leave to appeal against sentence refused.