R v di Pino[2004] QCA 39

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The appellant was convicted on two counts of unlawfully and indecently dealing with female complainants.  I will term the complainants A and B.

The offences occurred in January 2002 when A was 13 years old and B 10 years.  The appellant was arraigned on six counts in all, three concerning each complainant.  And he was acquitted on the remaining four counts.

The counts on which he was convicted were Count 1 in relation to B and Count 4 in relation to A.  He appeals on the ground that the differing verdicts are irreconcilable, that the verdicts of guilty are unsafe, and that the jury should have been directed that they should take a reasonable doubt in respect of the complainant's evidence on one count into consideration in an assessment of the complainant's credibility generally.

See The Queen v. Markuleski (2001) 52 New South Wales Law Reports 82 and The Queen v. M [2001] Queensland Court of Appeal 458.

The offences occurred in the back room of the appellant's barber shop.  The complainants knew the appellant.  They frequented the shop where their mother and an elder sister had worked and swept the floor in return for some small sums of money.

The appellant would watch television in that back room when there were no customers.  Evidence was given by a police officer, by A and B and their mother.  The appellant did not give or call evidence.

I deal first with the counts in respect of the elder complainant A which were counts 4, 5 and 6.

Count 4:  On the 15th of January 2002 A and the appellant were in the back room watching television at about lunchtime.  A was rubbing her sore back.  The appellant then rubbed her back and put his hand in the course of that under her arm and rested it on her left breast and shook his hand on the breast.  That was the conduct involved in count 4 in which the appellant was convicted.

The next day the appellant telephoned A's mother and told her that A had left the shop in an upset condition with some friends.  When asked why, the appellant referred to accidentally touching her breast.  The appellant said that he would drive around and collect the mother.

A tearful A then rang the mother and gave as the reason why she did not want to work with the appellant any more:  "He touched me on the boob."

Counsel for the appellant cross-examined to establish her mother did not, in her statement to the police, or in her evidence at the committal, mention the appellant's having made that telephone call but, significantly, Counsel did not put that the conversation did not occur.

The mother collected A from the shopping centre, and on the way home A again said that the appellant had grabbed her breast.  The appellant who was in the car responded that it was an accident.

Counts 5 and 6:  These concern conduct allegedly occurring also on 15th January 2002.  A gave evidence that the appellant massaged her legs, then rubbed her vagina through her clothing for a couple of seconds, that being count 5; and then again after she had finished a container of flavoured milk, that conduct being involved in count 6.

In her complaint to her mother on 16th January 2002, A referred only to the touching of the breast.  While the mother in evidence-in-chief said that in the car A complained also about being grabbed between the legs.  She, the mother, did not include that in her statement to the police, and admitted the possible confusion.

I deal now with the question of arguable inconsistency in verdicts in relation to A.

Looked at to this point there is a clear basis on which the jury could have been satisfied of proof beyond reasonable doubt for count 4, while entertaining doubts about counts 5 and 6. A's credibility in relation to count 4 was supported by, first, the appellant's admission that he touched her on the breast albeit, he claimed, by accident; and, second, by the terms of her recent complaint.  There is also the evidence that, at the time she raised these matters, she was upset.

On the other hand in the relevant fresh complaint made by A to her mother over the telephone, there was no reference to the vaginal contact as allegedly involved in counts 4 and 5.

I turn now to the counts in respect of the younger complainant, B, being counts 1, 2 and 3.

Count 1.  On a rainy afternoon the date of which was not established the appellant picked B up, A already being in the car, as B was walking home from school.

During an absence of A from the shop, the appellant put his hands up under B's skirt under her underwear and rubbed her vagina.  This is the incident covered at pages 10 to 11 of the police interview which was tendered, and Mr Chowdhury who appeared for the appellant agreed that this was the incident involved in count 1.  It was on this count that the appellant was convicted.

Counts 2 and 3.  On the previous Wednesday while another sister was asleep at the shop the appellant did a similar thing to B this time rubbing her vagina through her pants, that being count 2, and on Saturday when she was wearing board shorts the appellant did the same, that being count 3.

During cross-examination B agreed, however, that on Saturdays she was always at her father's house and did not visit the shop.  The appellant was acquitted on those two counts.

In relation to the issue of complaint the mother gave evidence that after A's complaints came to light, A told the mother that she should speak to B.  The mother then asked B if the appellant "ever tried to touch you in any way like he did with" A.

B said that the appellant touched her on the bottom every time she walked passed him in the back of the shop.  She said, "Once he touched my wee wee."  She added that he put his hand inside her pants and squeezed her vagina.

Counsel for the appellant made a number of points about this.  He referred first to evidence from B that before the contact with the police on 17 January A had told her what the appellant had done to A.  B responded by telling A what the appellant had done to her and B subsequently told her mother.

During the police interview and in her evidence-in-chief, B did not refer to the appellant's touching her on the bottom.  Counsel also suggested the way the mother elicited B's complaint raised "grave concern".

I turn to the issue of inconsistency of verdicts in relation to B. 

On the Crown contention the reason why the jury may not have been satisfied on count 3 which allegedly related to the Saturday, was B's agreement that she would then have been at her father's place.  That may at once be accepted.

As to the differing verdicts as between counts 1 and 2, the respondent relies on B's having complained to her mother of being touched on the vagina only "once"; on what is said to be the more comprehensive detail given in evidence in relation to count 1 (although I don't consider that the evidence was appreciably more detailed); and on the absence of evidence from the other sister said to have been present, although asleep when the offence involved in count 2 allegedly occurred (although it must be said the jury may simply have taken the view that because asleep there would have been nothing she could add).

In my view proceeding that way would involve too subtle or fine an effort to rationalise these verdicts.

There is the additional risk that the reference in B's complaint to having been touched only once may have been used as probative rather than just in relation to credibility, and that so notwithstanding the learned Judge's orthodox direction.

The Judge referred to that possible risk in his report to this Court.  Also, the circumstances which led to these complaints, namely, the preceding discussion between the sisters and the direct questioning from the mother contribute to some vulnerability in the conviction.

Finally, there is the untenability of count 3 because of B's presence at her father's place.  The need to reject B on that count should rationally have contributed to unease in upholding count 1.

I consider the conviction in relation to count 1 to be unsafe in these circumstances.  The circumstances to which I have referred militate against a re-trial on count 1.  I would order that the conviction on count 1 be quashed and that the penalty imposed be set aside and that a verdict and judgment of acquittal be entered on that count.

I turn to the fate of the conviction on count 4.  The result I have just indicated should not, however, mean that the conviction on count 4 would necessarily be rendered vulnerable.  That conviction is rationally sustainable notwithstanding the acquittals on counts 5 and 6 for reasons previously explained.

It should be noted that the complaint about the conduct involved in count 4 and the concession by telephone by the appellant about having touched A's breast preceded any discussion between A or B, or between B and her mother. There is no ground for suspicion that the allegation involved in count 4 was the product of any collusion, or collaboration between A and B.

As to the absence of a Markuleski direction, it is not always necessary in cases of this character, it was not sought and there being a clear basis for the disparate verdicts in relation to A, with the jury entitled, in accordance with the summing up, to accept as reliable her account in relation to count 4 while not accepting as reliable her evidence on counts 5 and 6 without, that is, the outright rejection of her credibility overall, that conviction should stand.

The conviction on count 4, premised on the jury's accepting her honesty and reliability on that count, gains some distinctive support from the appellant's statement over the telephone to which I have referred.

It is important to note the jury were comprehensively directed as to the Crown's obligations of proof in the context of the claim of accident and have accepted A's evidence of the shaking of the breast as connoting a deliberate act on the appellant's part.

I turn to the issue of penalty.  In respect of the conviction on count 1 which on my judgment should be set aside, the appellant was sentenced to 12 months imprisonment and in respect of count 4 to a concurrent term of six months imprisonment, all to be suspended after five months for an operational period of two years. 

The sentences were imposed on the 11th of December 2003.  Because the learned sentencing Judge had regard to the totality of the conduct found against the appellant, time should be extended as necessary to allow a grant of leave to appeal against the surviving sentence of six months imprisonment, suspended after five months for an operational period of two years in respect of count 4.

The learned Judge pointed out that count 4 involved a brief touching through clothing, that no threats were involved, and that the 61 year old appellant had no prior criminal history. On the other hand the appellant was in a position of trust in relation to A.

The appellant has been in custody continuously since he was sentenced.  He has, therefore, served two months and 11 days including two days pre-sentence custody.  In my view that time already served amounts to a sufficient penalty for the offence involved in count 4 taken alone.

I would set aside the penalty imposed in respect of count 4 on 11th December 2003, sentence the appellant to the period of imprisonment he is already served in respect of that count, that is two months and 11 days, and order that the appellant be released from custody forthwith.

WILLIAMS JA:  I agree.

MACKENZIE J:  I agree.

THE CHIEF JUSTICE:  Well, the orders are, because they are scattered through what I said before I should re-state them.

Quash the conviction on count 1;  set aside the penalty imposed in respect of count 1;  enter a verdict and judgment of acquittal on count 1.

In respect of count 4, dismiss the appeal against conviction, extend time as necessary to allow a grant of leave to appeal against the sentence imposed in respect of that count.  Allow that appeal against sentence.  Set aside the penalty imposed in respect of count 4 on 11th December 2003.  In respect of that count sentence the appellant to the period of imprisonment he has already served, namely, two months and 11 days.  Order that the appellant be released from custody forthwith.