R v BAU[2005] QCA 106

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant was charged with unlawfully and indecently dealing in 1986 with his nephew, who was then under 14 years, at a central Queensland town (count 1).  He was also charged with indecently dealing with the same nephew in Brisbane in 1992 (count 2).  He was found not guilty of count 1, but guilty of count 2 in the District Court at Cairns on 8 December 2004.  He appeals against his conviction now only on the basis that the jury's verdict was unsafe and unsatisfactory, that is, that it was unreasonable or cannot be supported on the evidence.^[1] 

2. A consideration of this ground of appeal requires a review of the evidence in the case: M v The Queen.^[2] 

3. The complainant was born in 1977 and was about eight at the time of the first count and about 14 at the time of the second. The appellant, the brother of the complainant's mother, was about eight years older than the complainant. The complainant gave evidence of the two specific incidents constituting count 1 in central Queensland and count 2 in Brisbane. He also gave evidence of uncharged acts describing the first and last episodes of abuse and many similar acts in between. It seems all the uncharged acts occurred in north Queensland. He said the appellant regularly made him suck the appellant's penis to ejaculation. This occurred first when he was only five or six years old in the laundry of the complainant's home in north Queensland where the complainant lived with his mother and siblings. The appellant told him not to tell anyone because he would get a hiding and no-one would believe him anyway. He said the appellant committed many similar acts with him in the laundry when the appellant visited his home but he was unable to recall more details. On one occasion, the complainant followed the appellant's instructions to climb out his bedroom window, walk along a green house and enter the bathroom window where the appellant was naked with the shower running. The complainant again complied with the appellant's request to suck his penis. He did so until the appellant ejaculated. The appellant told him again not to tell anyone or he would get a hiding.

4. The complainant gave evidence that count 1 occurred this way. The complainant was living with an uncle and his family in a central Queensland town for a period in 1986 around Easter. His female cousin, A, who was about his age, lived in the house. One evening, the appellant slept over in the house although the complainant could not recall why. The complainant slept in the loungeroom with his cousins. During the night, the appellant woke him. He followed the appellant's instructions to go into the bathroom and to suck his penis. He was kneeling in front of the appellant who held the back of his head. He thought the appellant ejaculated. The appellant told him not to tell anyone. He rinsed out his mouth and returned to the loungeroom to sleep.

5. The complainant's evidence of count 2 was as follows. In 1992, he was living with his mother, step-father and an infant half-brother in Brisbane. He was 14 years old. It was winter because it was cold. The appellant visited their unit and returned late in the evening after having been out. He seemed to have been in a fight. He went into the complainant's bedroom. The complainant complied with the appellant's request to suck his penis. The appellant fondled the complainant's genitals through his track suit pants before ejaculating in the complainant's mouth. He could not recall whether he spat or rinsed out the ejaculate but after the incident he went to sleep. The appellant told him again not to say anything.

6. The complainant said the last occasion the appellant indecently assaulted him was at an aunt's home in north Queensland in late 1993. The appellant called him into the bathroom in the afternoon and asked him to suck his penis, stating that this would be the last time. The appellant ejaculated. The complainant rinsed out his mouth and left.

7. The first person the complainant spoke to about the appellant's abuse was his cousin, A, in 1998. He said that the appellant had molested or interfered with him when he was a child. He did not go into details but told A about the appellant's behaviour in response to a question from his cousin as to why he was gay.^[3]  He did not report the matter to police until some years later.

8. The complainant said that he complied with the appellant's sexual requests because he was an elder: the complainant is Indigenous and Indigenous culture requires compliance with an elder's requests. In referring to the appellant as an elder, he meant that he was older than the complainant, not that he was a tribal elder.

9. On 4 October 2001, at 9.10 am, police officers tape-recorded a telephone conversation when the complainant rang the appellant. The following conversation occurred:

"COMPLAINANT:  Hello, is this [the appellant]?

APPELLANT:  Yeah.

COMPLAINANT:  Yeah, I was wondering – this is [the complainant].  I was wondering, can you tell me why you molested me for seven years?

APPELLANT:  What are you fucking ringing for?

COMPLAINANT:  I'm ringing from down home.  I want to know why did you molest me?

APPELLANT:  [indistinct]  go on?

COMPLAINANT:  You know exactly what I'm -----

APPELLANT:  You going to start big trouble.

COMPLAINANT:  You know exactly what I'm going on about.  I just want to know why you molested for all them years.

APPELLANT.  You going to start a big trouble.

COMPLAINANT:  I'm asking the question.  Are you going to answer it?

APPELLANT:  Eh?

COMPLAINANT:  Why did you molest me for all them years, at my mother's house, in my mother house, down at -----

APPELLANT:  Look, David's in the net out there.  Look.

COMPLAINANT:  How could you do this?  Don't you have a conscience?

APPELLANT:  I didn't have a good childhood either mate.

COMPLAINANT:  So does that -----

APPELLANT:  From my own father.  I'm sorry it happened to me and I'm sorry it happened to you.  I'm really, really sorry.

COMPLAINANT:  All right.

APPELLANT:  I couldn't stand up for myself."

10. The complainant then terminated the conversation.

11. In cross-examination, the complainant agreed that he was homosexual; that he believed the appellant's abuse of him had made him homosexual; and that a person only becomes homosexual if sexually abused. He agreed that his mother was unhappy that he was a homosexual; she regarded homosexuality as sinful; and he was trying to rebuild a relationship with his mother. He admitted that he had been a troubled pre-teen and teenager, had wagged school and had smoked marijuana and experimented with other drugs.

12. The appellant's cousin, A, gave evidence relevant to count 1 that she had no recollection of the appellant spending a night at her family's home in central Queensland. In cross-examination in answer to leading questions, she agreed that there was no occasion when the appellant stayed overnight in their central Queensland home.

13. She also gave evidence of the complainant's preliminary complaint under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld).  In 1998 the complainant came home upset and crying .  She asked him what was wrong.  He would not answer her at first but finally said, "I was interfered with when I was a kid."  She asked what happened.  He said that the appellant interfered with him.  He was hysterical, crying and his body was shaking.  She brought her parents in to assist him.  In cross-examination, she said that he did not say anything about being homosexual.

14. The appellant gave evidence denying that he had ever behaved improperly with the complainant. He admitted that he had visited the complainant's Brisbane home in 1998, gone out for the evening and returned home after being in a fight, but denied any sexual contact with the complainant. When asked in cross-examination about the recorded 2001 telephone conversation with the complainant he said he was distracted at the time of the call because he was fishing with another relative; in apologising, he was not admitting to abusing the complainant but was merely expressing regret that the complainant was so unhappy and disturbed. He agreed that he had heard talk in the family that the complainant alleged he had abused him as a child before the phone call so that he understood immediately the nature of the complainant's allegation of molestation in the phone call.

15. Counsel for the appellant contends that the jury could not be satisfied of the appellant's guilt in respect of count 2 because there were inconsistencies in his account. On the only occasions his evidence could be tested against the evidence of another (namely that of his cousin A as to count 1 and the circumstances of the preliminary complaint) he was proved unreliable. The complainant's contention that he complied with the requests of his uncle because he was an elder are implausible, at least in respect of the second count by which time he was a disobedient and wilful 14 year old. Additionally, there is evidence of a possible motive to make a false complaint, namely that he thought someone could become homosexual only if sexually abused and to explain his sexuality to his mother made up this false account against his uncle. Even if the jury accepted the telephone conversation as a general admission against interest and thought there may have been some improper contact between the complainant and appellant, having rejected the complainant's evidence on count 1, they could not be satisfied beyond reasonable doubt of the appellant's guilt of each element constituting count 2, especially when these offences were said to have occurred so long ago.

16. The learned primary judge in a fair and balanced summing up warned the jury about the dangers of delay in this case, consistent with Longman v The Queen.^[4]  There is no complaint about any of her Honour's directions. 

17. There is a logical explanation for the jury acquitting on count 1 but convicting on count 2. They may well not have been satisfied of the appellant's guilt beyond reasonable doubt on count 1 because of A's evidence that the appellant did not stay overnight in the central Queensland home at the time the complainant said the offence occurred. That did not require them to also reject the complainant's evidence on count 2. Both the complainant and A were only eight or nine years old and in grade four at the time count 1 was said to have occurred. The jury may have thought the complainant was doing his honest best to recall events at that time but were not prepared to accept his evidence as reliable on all elements of count 1 beyond reasonable doubt. There was, however, no comparable evidence throwing doubt on his testimony on count 2. Indeed, the appellant admitted visiting the complainant's home on what seems to have been the occasion to which the complainant's evidence on count 2 relates: he had been out for the evening and returned after being involved in a fight.

18. The complainant's evidence was supported in a general way by the recorded telephone conversation with the appellant in 2001. Such evidence is routinely admitted in trials in Queensland where it is not excluded under the principles discussed by the High Court in R v Swaffield:^[5] see R v Burt,^[6] R v M^[7] and R v B.^[8] It is not contended here that the evidence was unfairly admitted, no doubt because the recorded conversation appeared to be between equals, did not take the form of an interrogation and the appellant could have withdrawn from it at any time he wished.  The appellant's tape-recorded statements against interest provide strong support for the complainant's evidence. 

19. Although there was never any obligation on the appellant to establish motive, his attempts to do so in this case were unconvincing and did not require the jury to reject the complainant's evidence as to count 2. His attempt to give a simple explanation (obeying his elder) for his no doubt complex reasons for complying with the appellant's sexual requests, even when he was a rebellious 14 year old, did not mean he was unreliable in his evidence on count 2. The alleged inconsistencies between the complainant and A as to the preliminary complaint were explicable as different witnesses' interpretation of the same emotional event and did not necessarily weaken the complainant's credibility.

20. None of the matters raised by the appellant, alone or in combination, required the jury to reject his evidence on count 2. The jury were well entitled on the whole of the evidence to conclude beyond reasonable doubt that the appellant was guilty on count 2. The appeal should be dismissed.

21. JERRARD JA:  In this appeal I have read the reasons for judgment of McMurdo P and respectfully agree with those and the order proposed by Her Honour.

22. CULLINANE J:  For the reasons given by the learned President, I agree that the appeal in this matter should be dismissed.