R v N[2001] QCA 70

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read the reasons for judgment of Williams JA and Wilson J and agree that the appeal against conviction should be dismissed for the reasons they have given.  I wish only to add the following by way of emphasis.

2. It would have been preferable in this case if the jury had been specifically and clearly warned by the learned trial judge that the complainant's evidence of uncharged acts did not support the occurrence of the specific events charged in the indictment and that such evidence should not be substituted for the evidence of the specific acts. See R v Kemp;^[1] R v LSS^[2] and R v A.^[3]  Nonetheless, as Williams JA and Wilson J have demonstrated in their reasons, the judge's summing-up when looked at as a whole adequately instructed the jury as to the limits of the relevance of the relationship evidence.

3. I also agree with the reasons and orders proposed by Williams JA and Wilson J as to sentence.

4. WILLIAMS JA and WILSON J:  The appellant, N, was convicted of one count of unlawful and indecent dealing with a girl under the age of 12 years and sentenced to 15 months imprisonment.  He appeals against the conviction and seeks leave to appeal against the sentence.

5. The appellant and his family (wife and daughter) lived at material times in Burrum Town, a small place north of Maryborough. The complainant, Emma C, lived with her mother two houses away from the appellant in the same street. The families were friendly. The complainant and her younger brother (Brenton) frequently visited the appellant's home, often when the complainant's mother and the appellant's wife were away together. There was a deal of association between the appellant and the complainant in the years 1996 and 1997. The complainant was born on 17 May 1985, thus she was a school girl aged 11 and 12 during that period of time.

6. The appellant pleaded not guilty to each of the five counts on the indictment. The charges, briefly described, were as follows:

Count 1 -on a date unknown between 4 April 1996 and 16 April 1996 at Redcliffe, unlawfully and indecently dealt with the complainant, a child under the age of 12 years;

Count 2 -on a date unknown between 1 May 1996 and 30 June 1996 at Burrum Town, unlawfully and indecently dealt with the complainant, a child under the age of 12 years;

Count 3 -on a date unknown between 16 May 1997 and 31 December 1997 at Beelbie Creek Road raped the complainant;

Count 4 -on a date unknown between 16 May 1997 and 31 December 1997 at Burrum Town raped the complainant;

Count 5 -between 4 April 1996 and 31 December 1997 maintained an unlawful relationship of a sexual nature with the complainant.

7. After the trial, during which the appellant gave evidence denying all charges, the jury acquitted on counts 1, 3, 4 and 5, but returned a conviction on count 2.

8. The complainant gave evidence that the conduct giving rise to count 2 occurred shortly before the June school holidays in 1996. According to the complainant on that day she, her brother Brenton, the appellant's daughter Naomi, and the appellant went for a bike ride. The group returned to the appellant's home where the complainant had a drink and went to the toilet. The appellant then told Brenton and Naomi to go for another bike ride, leaving him and the complainant alone in the house. The appellant suggested that the complainant have a look at his shell collection in his spare bedroom. The complainant went into that room to look at the shells; she was sitting on the side of the bed on her own for some time. Relevantly her evidence went on: "And then when we finished he put them back, and then he closed the curtains and the door and that, and then he took off his shorts and pushed me back on to the bed, and then he got on top of me and started rubbing his penis on to my vagina again". According to her evidence she was clothed, and the appellant had on his shirt and undies. She said the appellant's penis felt hard. After some time she said that her brother Brenton came into the room; it was then that the appellant "got off me". Thereupon the appellant left the room.

9. Brenton gave evidence that he recalled a day when the appellant asked him and Naomi to go for a ride on their bikes whilst his sister, the complainant, stayed in the house. He was away for about 15-20 minutes. He said that when he came back to the house he noticed that the "door was closed and the curtains". He looked in the spare bedroom and "they were there"; he went on: "Well, they were laying on the bed and Emma had her back towards Russell and Russell had his left hand on her back". He said that the appellant was wearing a "red shirt and shorts". His evidence went on that the appellant "was jumping up" so he just "closed the door and went out".

10. There seems little doubt that the two witnesses were speaking of the same occasion. Certainly the jury would be entitled to infer that from the reference by each to things such as Naomi and Brenton going bike riding at the appellant's request leaving the complainant at the house, and the fact that the curtains were closed when Brenton returned.

11. In his evidence the appellant admitted that he had a shell collection but denied there was ever any occasion on which he was on the bed in the spare bedroom with the complainant.

12. Count 1 was alleged to have occurred at Redcliffe during a short period when the complainant holidayed with the appellant and his family. The conduct said to constitute count 1 allegedly occurred when the complainant and appellant were alone during that period. There was no evidence in any way supporting the complainant's evidence with respect to that incident.

13. The first rape was said to have occurred near a dam and the second in the appellant's home. Again there was no evidence tending to support in any way the evidence of the complainant. There were a number of inconsistencies and improbabilities about the evidence of the complainant with respect to those two charges.

14. Count 5 on the indictment was based on the other four counts and convictions would have been needed on at least three of them to support a guilty verdict on count 5.

15. After the complainant gave evidence in support of count 4 she was asked whether, on any subsequent occasion, the appellant "inserted his penis in your vagina". She answered, "yes", and went on to say that such conduct occurred on four occasions in the appellant's bedroom. She was unable to give dates or say over what period of time these events occurred. She said no one else was in the home on those occasions.

16. No objection was taken to the admissibility of that evidence and it was submitted by counsel for the respondent on appeal that the evidence was admissible and relevant at least to count 5 on the indictment. Further, the evidence was tendered as showing the relationship between the appellant and the complainant and putting the matters the subject of the charges into proper context.

17. The prosecution also called a friend of the complainant named Nicole who gave evidence of two events said to be relevant to establishing the relationship between the complainant and the appellant. On an occasion when the appellant, the complainant and Nicole were in bushland some distance from Burrum Town the appellant showed the two girls a magazine depicting "naked ladies showing their vaginas, and all naked". Nicole, who was about the same age as the complainant, considered it "really disgusting".

18. On another occasion Nicole was with the complainant at the appellant's house where there was an aboveground swimming pool.  The complainant did not have her swimming togs, and probably Nicole didn't either.  According to Nicole the appellant said: "Don't worry about it, just swim in your bra and your knickers cause there's no one there to look at you".  Apparently the girls went home and got their togs before swimming.

19. The complainant did not refer to either of those incidents in her evidence. Objection was taken by counsel for the defence at trial to the admissibility of Nicole's evidence but the learned trial judge ruled it admissible. He did so on the basis that it showed "guilty passion" and was "capable of indicating the accused encouraged or perpetuated an atmosphere of loose morality in Emma".

20. On appeal, counsel for the appellant submitted that the evidence of Nicole was highly prejudicial with little or no probative value, and that the learned trial judge erred in the exercise of his discretion in admitting the evidence.

21. It may well be stretching things to say that the evidence went to establish "guilty passion", but at least it does tend to show an inappropriate relationship between an adult and young, immature girls. We are not persuaded that the evidence was wrongly admitted. Once it was before the jury it was important for the trial judge to give appropriate directions in his summing up with respect to it.

22. In that regard the jury were clearly told that there was no evidence tending to support the complainant's evidence that she was indecently dealt with or raped. They were told that they could regard the evidence of Nicole as being "consistent with there being an atmosphere being engendered by the accused, of loose morality, if you like, in the girls. And if you thought that was right that was the situation, then you would need to look to see whether you thought that was consistent with Emma saying she had been indecently dealt with and raped". That was said in the context of the jury being told they would "need to scrutinise [the complainant's] evidence with care".

23. Reference should also be made to the passages in the summing up where the learned trial judge gave directions with respect to the evidence of uncharged acts. He referred to such evidence as being of "background matters". Without quoting passages, the jury were instructed that such evidence was not directly related to the charges, but was placed before them so that the critical acts were not seen as happening in a vacuum.  That was mentioned on more than one occasion.

24. Emphasis was placed in the summing up on the fact that the prosecution case "really stands or falls on Emma's evidence and what you made of Emma". Reference was made to many of the inconsistencies and improbabilities in her evidence.

25. Given the state of the evidence the learned trial judge was obliged to give directions as to the relevance of the background evidence as to the relationship between the complainant and the appellant, and the relevance of the evidence of uncharged acts, in accordance with R v Kemp [1997] 1 Qd R 383, R v Kenward [2000] QCA 482; CA No 100 of 2000, 24 November 2000, R v L. S. S. [2000] 1 Qd R 546 and R v A [2000] QCA 520; CA No 118 of 2000, 19 December 2000.  The main complaint by counsel for the appellant was that the summing up failed to satisfy the test laid down in Kemp because the jury were not clearly told that propensity reasoning was totally wrong and that a conviction could not be recorded on the basis that the evidence showed a general disposition to commit offences of the kind in question.

26. Thomas JA in L. S. S. at 556 referred to the danger of giving "warnings by rote" in such circumstances.  Juries generally will not be assisted by judges using a set formula of words not tailored to the facts of the particular case.  What might be regarded as sufficient compliance with Kemp in one case may well not suffice in another.  Given all of the circumstances here we are not convinced that the summing up was so deficient in this regard as to involve a misdirection.  Whilst there are grounds for criticising what was said in the course of the summing up, we are satisfied that, particularly after the redirections, the jury were instructed adequately and they knew the limits on the relevance of evidence in question.  That, in our mind, is borne out by the verdicts returned.

27. It is clear that the jury, having been instructed to scrutinise the evidence of the complainant carefully, was not prepared to accept her evidence in the absence of some other evidence tending to confirm what she said. Not guilty verdicts were returned in all instances where there was no independent evidence suggesting the complainant was truthful. That, to our mind, clearly shows that the jury did not give any improper weight or relevance to the evidence of uncharged acts and the evidence said to be no more than "background evidence".

28. Although the evidence of Brenton did not specifically confirm the complainant's evidence that the appellant was pressing his erect penis up against her, a reasonable jury was clearly entitled to conclude that his evidence sufficiently supported that of the complainant to enable them to be satisfied beyond reasonable doubt that the conduct the subject of count 2 occurred.

29. Counsel for the appellant did make the submission that the jury, given the terms of the summing up, could also have had regard to Nicole's evidence as supporting the claimant's evidence on count 2. It is true that in structuring the summing up the learned trial judge referred to both the evidence of Brenton and that of Nicole when dealing with evidence which the jury may find supported in some way the complainant's evidence. But what is more significant is that his comments with respect to Brenton's evidence were directly related to count 2, and that was the only count on which a conviction was recorded.

30. Given the whole of the evidence we are satisfied that the jury was entitled to return a verdict of guilty on count 2 notwithstanding the fact they were not satisfied beyond reasonable doubt that the other alleged offences occurred. There was no positive misdirection in the summing up which would necessitate setting aside the verdict on count 2. In all the circumstances we are not persuaded that the verdict on count 2 should be regarded as unreasonable, unsafe and unsatisfactory.

31. The appeal against conviction should be dismissed.

32. Turning to consider the question of sentence; the appellant was aged 42 when sentenced, and was 38 at the time of the offence.  He was a married man with a daughter aged nine.  He had no previous convictions.  The conduct in question was, on the evidence, limited to the appellant lying on or against the girl on a bed whilst she was fully clothed and he was dressed in shirt and underpants.  The conduct also involved him rubbing his erect penis against her vaginal area whilst they were so clothed.

33. In order to facilitate comparison with other sentences it must be noted that there was no touching (either with fingers or penis) of an exposed vagina, no exposing of the penis, no penetration of the vagina and no attempt to have the girl touch the penis. There was no ejaculation.

34. Further, the sentence must have regard to the fact that the incident was an isolated one. The appellant falls to be sentenced on the basis of a single incident of indecent dealing where the physical contact was through the clothing each party was wearing.

35. The conviction in question followed a trial and therefore the appellant is not entitled to the discounting which may have been relevant if there had been a plea of guilty. But it cannot be overlooked that the conviction followed a trial in which verdicts of not guilty were returned on more serious charges.

36. Any indecent dealing by a mature male with a young girl is a serious offence, but the conduct here meant that a sentence towards the bottom of the range was called for. The sentence had also to reflect the fact that the appellant had no previous conviction.

37. The learned sentencing judge was provided with a schedule of sentences and he referred in the course of his sentencing remarks to a number of cases referred to therein. In our view each of the cases that he referred to was clearly distinguishable from the present case; in all there was some actual touching of the vagina (if not digital penetration) or exposing of the penis, more often than not involving ejaculation. Counsel for the crown on appeal conceded that the sentence was "high" but argued that it still was within range.

38. Having regard to the schedule of sentences placed before the sentencing judge, and considering the cases referred to in the course of argument on appeal, the appropriate sentence in the circumstances of this case was six months imprisonment. It therefore follows that the sentence imposed in the District Court was manifestly excessive and should be set aside.

39. The orders of the court should therefore be: appeal against conviction dismissed. Grant leave to appeal against the sentence. Allow the appeal, set aside the sentence of 15 months imprisonment, and in lieu thereof impose a sentence of six months imprisonment.