R v Yeo[2001] QCA 368

COURT OF APPEAL

DAVIES JA

THOMAS JA

WILSON J

BRISBANE

DATE 06/09/2001

JUDGMENT

DAVIES JA:  The appellant was convicted in the District Court on 4 April this year on 13 counts involving sexual offences against two young boys; one aged 11, the other nine. 

Those offences were five of indecent dealing with the first of these children, four of indecent dealing with the second of them, one of permitting himself to be indecently dealt with by the first child, one of wilfully exposing himself to that child, one of permitting himself to be unlawfully dealt with by the second child and one of wilfully exposing himself to the second child.  All offences occurred between June and October 1999.

The appellant appeals against his conviction on the ground that the verdict was unsafe for two reasons; the first because of inconsistencies in the evidence of witnesses and the second because of the absence or inadequacy of forensic evidence.  At his trial, which took place over three days, he was represented by counsel.  However, he has conducted his own appeal.

Some relevant facts were undisputed.  The appellant shared a house with another man, R during 1999.  Two of R’s children, the first complainant and a girl, also resided in that house. Then from 19 June 1999 a woman and her daughter also resided there.  She commenced a relationship with R and eventually married him. 

When this woman moved into the house the first complainant moved in to share a bedroom with the appellant.  According to him, at and shortly after this time the appellant commenced to commit sexual offences against him.  The complainant at that time was aged 11. 

A short time later the second complainant, then aged nine, commenced staying at the house from time to time.  When he did so he shared the bedroom with the appellant and the first complainant.  Thereafter, according to both of them the appellant commenced committing sexual offences on both of them.  The offences, each of them said, occurred in that room.

At the trial statements from each of the complainants pursuant to section 93A, consisting of video recorded interviews, were tendered in evidence and each of them gave oral evidence.  Their evidence was corroborated by evidence from the first complainant's sister and the daughter of the woman, already referred to, who had also moved into the house, that each of them had heard protests from one or other of the boys emanating from the appellant's room.  The second of these girls also gave evidence of hearing the appellant's door being locked after the appellant and the two complainants had gone into the room.  Both complainants said that the appellant had given them cigarettes and the first complainant also said that he had given him money.

The appellant himself gave evidence denying that any of the offences had occurred.  Plainly the jury rejected his evidence and accepted that of the complainants, supported as it was in part by evidence of each of the girls to whom I have referred. The first question then is whether the evidence of the complainants was such that no reasonable jury could have been satisfied of its truth beyond reasonable doubt. 

The first four of the indecent dealing counts involving the first complainant occurred, according to him, in the absence of the second complainant.  All other counts in the indictment, according to both complainants, occurred in the presence of both of them.

The appellant, who, as I have said, conducted his own case, has apparently gone carefully through the whole transcript of prosecution evidence in order to identify passages in it which he says show inconsistencies in the evidence of the principal witnesses.  I do not propose to deal with all of these but I shall mention those which appear to have the greatest relevance to the argument he wishes to advance. Before discussing that evidence, however, it is desirable to say something briefly about the nature of the conduct alleged to constitute each of these offences. 

The first four counts of indecent dealing with the first complainant involved, according to him, touching the complainant's penis, sucking the boy's penis, inserting a finger in his anus and having the boy lie on top of him.  These were the offences committed in the absence of the second complainant.

The offences against the first complainant said to have been committed in the presence of the second complainant were forcing the complainant to touch the appellant's penis, having the complainant suck his penis and exposing him to indecent acts committed on the other complainant, those indecent acts being having the other complainant suck the appellant's penis and inserting a finger in the other complainant's anus.

Of the four offences of indecent dealing against the second complainant two of them involved touching the complainant's penis, the third involved inserting a finger in the complainant's anus and the fourth involved having that complainant lie on top of him.  The offence of permitting himself to be indecently dealt with by that complainant involved having the complainant suck his penis and the last count involved exposing the second complainant to indecent acts committed on the first complainant; namely, having the first complainant suck the appellant's penis and inserting a finger in the first complainant's anus.

The first alleged inconsistency relied on by the appellant concerns the protests which the two girls said they heard emanating from the room.  The appellant says that neither of the boys ever said that they protested or at least that they did not protest in the terms which the girls spoke of.  It may be correct that the boys did not protest in precisely the same terms to which the girls deposed but the first complainant certainly said he protested.

In one part of his section 93A statement he said, "Well, he was telling like, telling me now, I said no and he started doing it and then I said no I don't want to do that any more. Told him to leave me alone.  He wouldn't."  In another part of his statement he said, "I was scared.  I was telling him no and he just kept pushing his head down."  There is therefore in my opinion no substance in that complaint.

Next, the appellant relies on what he submits is an inconsistency between the evidence of the two complainants.  The first complainant said that he tried to pull the appellant away from the second complainant on one occasion.  Without leading him, an attempt appears to have been made to elicit similar evidence from the second complainant without success. But the questions are unclear and the second complainant may easily have misunderstood what he was being asked.  In any event, a difference in recollection on these matters is no more than one would expect by honest children trying to recall what had in fact occurred.

The appellant's next complaint relates to some questions which were almost bound to confuse a young person.  The following is an example.  "Is it true or false that Raymond never put his mouth on your penis?"  A series of questions of this kind resulted in confused answers which were later rectified.  I do not think there was any real doubt about what the complainant was saying, in each case, and his evidence had already been fully expressed in his video recorded interview.  Those submissions are accordingly without substance.

Criticism is then made of the absence of any corroboration of the evidence of the girl who said that she heard the bedroom being locked after the appellant and the two complainants went into that room.  It is true that neither of the complainants gave evidence of this but nor were they asked.  The appellant seems to be making the point which he added to in his oral submissions before us today that it did not follow that it was he who locked the door.  It is true that that did not necessarily follow but it was, I think, a reasonable inference for the jury to draw in the circumstances and I can see nothing wrong with them being asked in effect to draw that inference.

There is then some criticism of the failure of the appellant's counsel to ask the doctor who had examined each of the complainants some time after the alleged offences whether some discolouration of the anus of one of the complainants could have been caused after the last occasion on which an offence is alleged to have occurred.  However, the doctor had already said that her findings were non-specific and neither supported nor disproved an allegation of digital penetration.  In those circumstances, defence counsel was plainly correct in refraining from asking any further questions on this matter.

Finally, with respect to the evidence of the complainant, the appellant submits that there was in effect no evidence that either complainant was compelled to sleep in the appellant's room.  In other words, that they could have slept elsewhere in the house.  That may also be correct but in my opinion that is of such minor relevance as to not affect the result of the jury verdict. 

The appellant then turned to his own evidence but this was plainly disbelieved by the jury and I do not propose to discuss it further.  Moreover, once the jury disbelieved the appellant's evidence and did not think there was any reasonable possibility that it was true, there was nothing in the evidence in this case which, in my opinion, could cast doubt on the correctness of the jury's verdict.

The appellant's complaint about the forensic evidence appears to involve two quite different matters.  One is a complaint that the police should have taken the complainants to a doctor immediately after complaints were made rather than, as appears to have been the case, about 18 days later.  However, as I have already mentioned the evidence from the medical practitioner was neutral on the question whether there had been digital penetration of either complainant so that her evidence did not harm the appellant in any way.

The appellant's point appears to be that had the children been taken to a doctor at a much earlier stage, perhaps immediately after the alleged commission of the last of the offences, evidence may have yielded a more certain result.  That may or may not be true but in my opinion does not affect the jury's verdict.

The other complaint with respect to so-called forensic evidence is again of a failure by the police to seek to obtain DNA evidence which could prove or disprove the commission of these offences.  There is nothing to indicate in my opinion that any such efforts could or would have been productive and in my opinion that failure cannot affect the safety of the jury's verdict.

The last point which Mr Yeo, the appellant, relies on is a failure at the trial to call a witness, Perry, who had been called at the committal.  Perry's evidence it appears was not directly relevant to any of the events the subject of the complaints.  The basis of calling him at the trial appears to have been to rebut a statement by one or more of the complainants that the appellant had, as he put it, made sexual overtures to Mr Perry.  According to the appellant here today Mr Perry denied this but in my opinion that was of no direct relevance to this and could no more than have been of marginal relevance to the credibility of the complainants.

For those reasons in my opinion there is no substance in any of the grounds relied on by the appellant and I would dismiss the appeal.

THOMAS JA:  I agree.

WILSON J:  I agree.

DAVIES JA:  The appeal is dismissed.