SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The 71 year old appellant was convicted after a four day trial in the District Court at Maroochydore on 4 May 2007 of one count of indecent treatment of a boy under 17 years whilst the boy was under 14 years.  At the commencement of the trial he pleaded not guilty to 10 counts contained in one indictment: maintaining a sexual relationship with a circumstance of aggravation (count 1); five counts of indecent treatment of a boy under 17 while under 14 (counts 2-6); and four counts of indecent treatment of a child under 16 (counts 7-10).  He was found guilty on count 2 and not guilty on all remaining counts.  All the offences concerned the complainant T and were charged as occurring between April 1986 and January 1992.  Count 2, the first count in time, was charged as occurring between 1 April 1986 and 1 January 1987 when the appellant was 50 years old and T was about 10 years old.  The appellant appeals against his conviction contending that it is unsafe and unsatisfactory, that is, under s 668E Criminal Code 1899 (Qld) the guilty verdict is unreasonable or cannot be supported having regard to the evidence.

The evidence

[2] A consideration of this ground of appeal requires a review of the evidence.  The appellant was a representative for a power tool company and was friendly with T's father.  He sometimes stayed with T's family at the recreation camp run by T's parents when he visited the rural town in which T lived. 

[3] The only count on which the appellant was convicted, count 2, was the first incident of the alleged abuse.  T gave evidence, consistent with the particulars provided by the prosecution, that the appellant was staying overnight at T's home in the autumn of 1986.  As T lay in bed, the appellant, who was sleeping in T's bedroom, touched him on the genitals before rejoining T's parents in the lounge room.  T was about 10 years old.  The incident occurred when he was attending a school in a nearby provincial city.  T initially told police that at the time the appellant first sexually abused him when he was attending the local state school. He remembered that an album of jazz songs, Hooked on Swing, was playing in his home and the only time he could recall a record like that being played was when the appellant was visiting. 

[4] T did not give evidence of the incidents particularised as counts 3, 7 and 8.  The prosecution relied on counts 7 and 8 as two of the three acts that were at the relevant time required to prove count 1, maintaining a sexual relationship.  The judge directed the jury that there was insufficient evidence to establish counts 1, 3, 7 and 8 and told them to return verdicts of not guilty on those counts. 

[5] In respect of count 4, the particulars provided by the prosecution alleged mutual masturbation and oral sex at about the time of the 1987 local agricultural show which other evidence established was on 1 and 2 May 1987.  T gave evidence that he met the appellant at the show and the appellant stayed at T's home that night.  The appellant fondled him and moved his hand up and down on T's penis.  (T did not give evidence of any oral sex.) 

[6] The particulars provided by the prosecution on count 5 alleged mutual masturbation and mutual oral sex at about the time of the 1988 local agricultural show which other evidence established was on 29 and 30 April.  T gave evidence that he went to the show.  That night he went to sleep.  The appellant was on the bottom of a double bunk in T's room.  Later that night the appellant pushed the mattress on the top bunk where T was sleeping and woke him up.  The appellant asked T to come down to the bottom bunk.  T complied.  The appellant put his hands down T's pyjama pants and masturbated his penis for one to two minutes until it was erect.  The appellant placed T's hand on the appellant's penis for the first time and directed T to masturbate him.

[7] The particulars provided by the prosecution in respect of count 6 were that it occurred about the time of the town show in 1989; the appellant and T mutually masturbated each other and performed oral sex on each other.  T's evidence was that he distinctly remembered this event because it was the first time in his life that he ejaculated and he recalled that it occurred after he attended the 1989 agricultural show.  The appellant masturbated T and had T masturbate him.  The appellant also performed oral sex on T.  T said this was the first time the appellant had performed oral sex on him.  (This contrasted with the particulars provided by the prosecution which were that oral sex had first occurred in 1987.)  T said that both the appellant and T ejaculated and the appellant wiped up the ejaculate.

[8] The particulars provided by the prosecution in respect of count 9 and count 10 were that the appellant and T participated in mutual masturbation (count 9) and mutual oral sex (count 10) at about the time of the 1991 local agricultural show.  Other evidence established that the show was held on 10 and 11 May.  T gave evidence supporting those particulars although at first he had difficulty recalling when these incidents occurred.  After an adjournment he said that these incidents occurred after the appellant attended the local agricultural show in 1991.  He had not performed oral sex on the appellant before this occasion.  (This was contrary to the particulars provided by the prosecution which recorded that the first act of oral sex by T on the appellant was in 1988.) 

[9] T also gave evidence of one uncharged sexual act in 1993 at the time of a local festival.  The appellant collected him from boarding school in a local provincial city and took him to a motel room where sexual activity occurred.

[10]  T's evidence was not directly supported by other prosecution evidence.  T's parents gave evidence that the appellant visited them on a number of occasions after March 1986 and during 1986 on seven or eight occasions.  In 1986 he slept in T's bedroom on the bottom bunk.  In later years the appellant sometimes slept in the relief manager's unit which was constructed subsequent to 1986.  T's mother said the album Hooked on Swing was played regularly in the household when the appellant was there.  T first complained to his then girlfriend, who was by the time of the trial his wife, towards the end of 1995 after she met his parents for the first time. 

[11]  The appellant gave evidence denying any sexual contact with T.  He did not stay with T's family as often as T claimed.  He tendered cheque butts to support his evidence that he was in Nambour on the night of 30 April 1987 and in Bundaberg on 2 May 1987 at about the time T claimed count 4 occurred.  He said he did not attend the local agricultural show in 1988 when count 5 was said to have occurred because he had a display in T's town on or about 19 August 1988 and he would not have both had that display and attended the town show in the one year.  He tendered a cheque butt which supported his assertion that he was in T's town in August 1988, some months after the show.

[12]  The appellant agreed that he attended the local agricultural show in 1989 when count 6 was said to have occurred.  He remembered it as it was the first he had attended.  On that occasion he stayed at the hotel with a workmate, Mr Symes, not with T's family.

[13]  The appellant said he did not attend the 1991 local agricultural show when counts 9 and 10 were said to have occurred because the Roma show was held over the same May weekend.  He tendered a receipt for the purchase of a transceiver at Roma which he claimed he paid for by cheque on 11 May 1991.  He tendered the cheque butt. 

[14]  On the first day of a festival in T's town in 1993 when the uncharged sexual act was said to have occurred, he received a splinter in his eye which required him to wear an eye patch.  T did not give evidence of the appellant having an eye patch at the time of this incident.

[15]  Before T made a complaint to police, he invited the appellant to his 21st birthday and wedding and borrowed power tool equipment through him. 

[16]  In cross-examination, the appellant conceded he may have stayed with T's family in 1986.

[17]  Four witnesses gave evidence of the appellant's good character.  One also confirmed his attendance at the 1991 Roma show and another that he suffered an eye injury on the first day of the 1993 festival in T's town.

[18]  When the jury retired to consider their verdict at 10.14 am on the last day of the trial, they were given a copy of the indictment and a copy of the prosecution's particulars of each charge.  The court resumed at 12.44 pm and the judge read out the following note from the jury:

"Each count states that on a date unknown between.  Then the particulars of each count give us two dates of each show.  Which dates do we take into account for the allegations?"

[19]  In re-directing the jury the judge emphasised that the prosecution was bound by the particulars so as to ensure a fair trial to the appellant.  Unless the prosecution satisfied the jury beyond reasonable doubt that the offence occurred around about or at the time stated in the particulars then the prosecution had not proven its case.  At the request of defence counsel the judge then further directed the jury that T's evidence narrowed down the time of the offences even more than the particulars: in respect of the remaining contentious counts other than count 2, T did not say the offences occurred as particularised at about the time of the local agricultural show but actually when the show was on.  The jury retired again at 12.57 pm.  The court reconstituted with the jury at 1.24 pm because the jury had requested to have a copy of the transcript of T's evidence.  Counsel did not object to that course and the judge acceded to the jury's request.  

The appellant's contentions

[20]  The appellant's counsel submits that because the jury had a doubt in respect of counts 4, 5, 6, 9 and 10, they must also have had a doubt in respect of count 2 if it was not a compromise verdict.  This was especially so in view of T's failure to come up with proof in his evidence in chief as to the particulars provided by the prosecution on counts 3, 7 and 8 (and indirectly count 1).  Further doubt was thrown on his evidence on count 2 because his evidence of the uncharged act was unreliable: he had no recollection of the appellant wearing an eye patch.  By contrast, the appellant gave sworn evidence denying the commission of all the offences and was not discredited in cross-examination.  Four witnesses gave evidence of the appellant's good character.  T's evidence of many sexual incidents occurring over a five year period was not supported by any other direct testimony.  T did not make a timely complaint, did not resist or run away from the appellant's advances nor call for help.  T invited him to his 21st birthday and wedding celebrations and arranged to borrow power tools from him, conduct inconsistent with T's evidence.  T's evidence on count 2 as to the album Hooked on Swing was inconsistent with T's mother's testimony.  T initially told police count 2 occurred when he was at the local state school whilst in his evidence at trial he said it occurred when he was at a school in a nearby provincial city.  A review of the whole of the evidence shows the jury should have had a doubt on the appellant's guilt on count 2: M v The Queen.[1]

Conclusion

[21]  The jury's verdicts of guilty on count 2 but not guilty on all remaining counts are consistent with their conscientious adherence to the judge's fair and measured directions to consider each charge separately and to convict only if satisfied on each count beyond reasonable doubt; of the danger of convicting on T's testimony unless, after careful scrutiny, they were satisfied of its truth and accuracy; and that recollection of childhood events many years earlier is often erroneous and may be distorted over time.  On each of counts 2, 4, 5, 6, 9 and 10 there was competing evidence from both T and the appellant.  In respect of counts 4, 5, 6, 9 and 10 the appellant's evidence had some additional support which threw doubt on the accuracy of T's evidence that the events occurred at the time of the local agricultural show.  There was, however, no such evidence supporting the appellant's version of events in respect of count 2, which T did not directly link with the date of the local agricultural show.

[22]  Further, the appellant's concession that he may have stayed with T's family in 1986 combined with the evidence from T's parents that the appellant slept in T's room on the lower bunk with T on the upper bunk, when he visited the family in 1986, was evidence the jury may have taken as supporting in some way T's version of events on count 2.

[23]  The absence of a timely complaint is not unusual in cases such as this and the circumstances of T's complaint to his girlfriend certainly did not establish inconsistency.  The fact that T was a pre-pubescent boy and the appellant a mature, close male friend of T's father at the time count 2 was said to have occurred makes it unsurprising that T did not resist, avoid or call out for assistance at the time of any sexual contact.  This relationship may similarly explain why T invited the appellant to his 21st birthday and wedding and borrowed power tools from him.  These matters, alone or in combination, were not necessarily inconsistent with the truthfulness of T's complaint on count 2.  The conflicting evidence from T and his mother as to whether Hooked on Swing was played only once when the appellant was present or more frequently was of little consequence and did not require the jury to reject T's evidence on count 2.

The record of the trial suggests the jury undertook their task conscientiously and were ultimately prepared to give the benefit of the doubt to the appellant in respect of counts 4, 5, 6, 9 and 10 because they were not satisfied beyond reasonable doubt that the offences occurred at the time of the local agricultural shows but were satisfied beyond reasonable doubt of T's evidence and as particularised by the prosecution of the appellant's guilt on count 2.  After reviewing the whole of the evidence I am satisfied it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 2.  I would dismiss the appeal against conviction.

ORDER:

Appeal against conviction dismissed.

[24]  HOLMES JA:  I agree with the reasons of the President and the order she proposes.

[25]  WILSON J:  I agree with the reasons for judgment of the President, and with the order Her Honour proposes.