R v Cotic[2003] QCA 435

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  I will ask Justice Holmes to deliver the first judgment.

HOLMES J:  The appellant appeals against conviction on five counts of indecent dealing with a child under 16.  The sole ground of the appeal is that a passage in the learned trial Judge's summing-up, in which he cautioned the jury against assuming that complainants of sexual offences could be expected to behave in any particular way, rendered the summing-up unbalanced and the trial as a whole unfair.

The offences were said to have occurred on the 11th of January 2001.  The complainant, a 14 year old boy, was staying with friends, Mrs and Mr M, who worked on a dairy farm managed by the appellant with the assistance of another man, G.  Mr M  managed the dairy herd while Mrs M did some housekeeping.

The complainant's evidence was that one morning a couple of days after his arrival he was asked by G to take some papers to the house shared by G and the appellant.  While he was there the appellant emerged wearing only underpants and asked him to come and look at something in a bedroom.  He removed the complainant's shorts, performed oral sex on him and masturbated him and himself before ejaculating on the complainant's stomach.  At this point the co-accused G entered the room and joined in.  The appellant rubbed the complainant's chest while G commenced to masturbate himself and the complainant.  He also ejaculated onto the complainant.

G then left and the appellant kissed the complainant, inserting his tongue into his mouth.  The complainant then showered.  While he was doing so, the appellant joined him in the shower and touched his penis again.  These events gave rise to the five indecent dealing counts.

The complainant saw Mr and Mrs M at lunchtime that day and did not say anything of the events to them.  Later on that afternoon, however, he disclosed to Mrs M that each of the two men had masturbated him.  On the complainant's account, on the following day the appellant made another attempt to kiss him and a couple of days later the co-accused G touched his penis through his shorts. On each occasion the complainant told Mrs M about what had happened.

On one occasion a couple of nights after the sexual assaults, he had dinner with Mr and Mrs M, the appellant and G.  He left the property, as had originally been arranged, about a week later.  He had spoken to his mother by telephone in the interim but did not, he agreed, ask her to come and pick him up.  She was about one and three quarter hours drive away.

He had told Mrs M not to contact the police, he said, because  he was too embarrassed and scared to do so, and he did not want to tell his parents what had occurred because his younger brother had been diagnosed with a serious illness, and he did not want to add to their troubles.

About a month later, the complainant returned to the property to assist with the dairying work for Mr and Mrs M while they were away for the weekend.  On this occasion he was accompanied by his mother and a friend, and, he said, he went on the understanding that the appellant and G would not be there.  In fact, they were still there when he returned, but nothing untoward happened.

After that time he had contact with the appellant once again in connection with an offer of free accommodation the appellant was to donate as a prize for a cattle show the complainant was involved with.  In March 2001 the complainant provided a statement to police about the events.

Mrs M gave evidence.  She said the complainant had told her that the two men had "sucked him off" and that they had played with themselves and ejaculated on him.  She said as to the complainant's return to the property in February that she had in fact warned him that the appellant and G would be there for the weekend.  She agreed she and her husband had left the property on bad terms with the appellant. 

Both the appellant and G gave evidence.  Each denied any misconduct in relation to the complainant and denied the specific allegations underlying the counts on the indictment.  The appellant said the complainant had helped around the property and departed on friendly terms.  Two weeks later he had contacted the appellant to ask him to donate the prize for the cattle show.  On the weekend in February the complainant had helped with work around the farm and was paid for doing so.

G, in his evidence, said that there had been an occasion towards the end of the complainant's stay where the complainant had volunteered to travel alone with him to the nearest centre.  He also said that the complainant had left on good terms and that nothing untoward had happened to him.

It is apparent from the summing-up that submissions were made on behalf of the defence that it was inherently improbable that the complainant would have behaved as he said he did, had the offences occurred:  that he would have allowed the appellant and G to deal with him in the way he described, that he would not have complained or gone straight home, that he would have returned to the property the next month or that he would have had further contact with the appellant over the donation of a prize.  In that context his Honour said this:

"In relation to that a matter of comment, you can have regard to this or ignore it if you don't agree with it, it is a matter for you.  But I would comment to you that there are no rules about how people who engage in sexual abuse of children behave and no rules about how their victims behave.  I would hope - and obviously most of you have never been in a position of being a 14 year old boy who is subject to this sort of sexual abuse - I hope that it doesn't apply to any of you and it is difficult to know how anybody who hasn't been in that position can really say how someone who is in that position is expected to behave afterwards. 

For example, the law for a long time assumed that if someone was a victim of a sexual abuse that such a person would promptly complain.  But we now know that there are numerous victims of sexual abuse, particularly children, who say nothing about it for  months or years or decades afterwards.  They just go on living their lives in the same way as if nothing was happening.  Now this shows how dangerous it is to make assumptions about how people in this position should behave, either generally or in a particular case.  So consider carefully about the extent to which any of you are really in a position to assess whether behaviour of this nature by someone in such a position really is inherently improbable.  Now that is a matter of comment.  You don't have to follow that if you don't want to.  I just make that comment for you to consider."

Mr Bowler, the appellant's counsel, accepted that apart from this passage the summing-up was balanced but the passage itself created, he submitted, an imbalance to the significant disadvantage of the appellant. 

It exceeded, he said, the limits of acceptable comment so as to render the trial unfair.  The comments tended to suggest a view of the trial Judge of the evidence of the complainant and in a finely balanced case they would have the effect of endorsing or lending support to the complainant's evidence. That could be taken, Mr Bowler submitted, in the context of an intervention by the learned trial Judge in cross-examination of the complainant to suggest a reason why he did not leave the room when he was found alone with the appellant.

But there was, in my view, nothing in his Honour's comments which endorsed the complainant's evidence.  At their highest, his Honour's remarks did no more than suggest to the jury that they should avoid preconceived notions of how a complainant should behave; and his remarks were attended by the reminder that the jury was free to approach the matter if they wished.

His Honour did not at any stage suggest that an acceptance of the complainant's evidence should follow.  Indeed it is noteworthy that the caution was followed by his reminding the jury of the inconsistencies within the complainant's evidence, and as compared with the evidence of other Crown witnesses.

His Honour's comments in my view were unremarkable and did not display partiality.  They were observations of the type which Section 620 of the Criminal Code permits and were made with appropriate circumspection.

Elsewhere in his summing-up he summarised Crown and defence cases with complete fairness and made it clear that the onus lay on the Crown to satisfy the jury beyond reasonable doubt.

I do not think that the appeal against conviction is made out and I would dismiss it.

McPHERSON JA:  I agree.

JONES J:  I agree.

McPHERSON JA:  The appeal against conviction is dismissed. I should perhaps just record again that we earlier dismissed the application for leave to appeal against sentence upon its being withdrawn or not proceeded with by counsel for the applicant.

Those are the orders of the Court.