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R v CAX[2010] QCA 121

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 85 of 2008

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2010

JUDGES:

Holmes, Fraser and White JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The conviction is set aside
  2. A verdict of acquittal is entered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where appellant convicted on one count of unlawful and indecent dealing with a child under 12 years – where appellant argued that inconsistencies in the complainant’s account made the verdict unreasonable – where appellant argued that the evidence identifying him as the perpetrator was unreliable – whether verdict unreasonable – whether a verdict of acquittal should be entered

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered

COUNSEL:

S J Hamlyn-Harris for the appellant

M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecution (Queensland) of the respondent

[1]  HOLMES JA:  The appellant was tried in the Childrens Court on a count which alleged that on a date unknown between 1 February 2008 and 13 March 2008 he unlawfully and indecently dealt with the complainant, with the aggravating circumstance that the complainant was under 12 years.  The sole ground of appeal is that the verdict was unreasonable.

[2]  The complainant, B, was a child who turned eight on 13 February 2008, within the period particularised in the indictment.  The appellant was 16 years old.  Both lived with foster parents, Mr and Mrs J, in a double-storey house in Townsville.  B had moved into the house on 1 February 2008.  Also living in the house were Mr and Mrs J’s own children, a boy aged 16 and a girl aged six, and five other foster children, two girls and three boys.  One of the boys, K, was 11 years old; the ages of the other foster children were not the subject of evidence.  B shared an upstairs bedroom with K.  Mr and Mrs J also occupied a bedroom on the upper floor, about eight metres from that shared by B and K; the appellant’s room was downstairs.  B alleged that the appellant had come into his bedroom at night, put his hand under his pyjama shorts and squeezed his penis.

[3]  The appellant argued that there were inconsistencies in B’s account which led to doubts about whether the offence had happened at all, and that B’s identification of the appellant as the offender was unreliable.

The evidence about when the indecent dealing happened and when B disclosed it

[4] When the incident happened and when B first disclosed it were the subject of varying evidence, to some extent in B’s own statements, but more obviously as between his accounts and those given by other witnesses.  On 20 March 2008, when he was questioned about it by a child safety officer, he said that the assault had happened “last month”; it was, the officer recorded, “closer to the time that he had arrived at the placement”.  In a police interview on 28 March, B said that it happened “ages and ages and ages ago”, when he was eight; but he later corrected himself to say that it was before he turned eight (that is, before 13 February 2008).  He said that he had told his foster parents what happened “weeks and weeks after” it happened.  In a pre-recorded hearing in December 2008, he said that he had told K what had happened when he woke up the next day, but did not tell Mr and Mrs J until a long time after it happened.  In another pre-recorded hearing in April 2009, he maintained that the assault had happened on a Friday and that on the following Monday he had told his case worker about it.  His case worker did not give evidence.

[5] Mrs J said that on the evening of 16 March 2008, K approached her and said that B had something to tell her.  B, who was with him, said, “No, I don’t”.  But after some encouragement, B told her that the previous Wednesday night (which would have been 12 March) the appellant had come into his room and touched his privates.  She confirmed that he meant the Wednesday “just gone”.  Cross-examined, she agreed that B’s statement had been that the appellant “had come into his bedroom and played with his private parts all night.”  Mr J gave similar evidence of K’s announcing that B had something to tell and B’s saying, “[The appellant] came into my room and played with my privates all night”.  Mr and Mrs J said that they reassured the boys and sent them to bed.

[6] K’s account of how the matter came to light was somewhat different.  In his police interview on 28 March 2008, he said that he and B were in their bunks, and B was kicking his bunk.  B, he said,

“… kept talking about [the appellant] and saying rude things.  And then he told me that he didn’t like it.  Then I told him that I didn’t like it at [Mr and Mrs J’s] house”.

K diverged at this point, to say that he had told his case worker that he wanted to move out and that he found the appellant and Mr and Mrs J’s son to be very racist and unpleasant to him.  Steered back by the questioner to B’s account, he said that B told him the appellant was “laying beside him and feeling his rude parts”.  B continued “talking dirty” and K told him to be quiet.  B was singing “dirty songs” about wanting to have sex with Mr and Mrs J’s six year old daughter.  Then they got up to find Mr and Mrs J standing at the door listening.  He, K, told Mr and Mrs J what B had been saying. 

[7] K’s account then altered a little.  He said that he and B spoke to Mrs J, and Mr J was somewhere else.  Then Mr J arrived and asked what was going on.  They told him that B had said the appellant “was feeling his rude parts”.  Mr and Mrs J swore at them and told them to get back to bed.  K agreed that B’s disclosure to him had been made “three Wednesdays before” (which would be 12 March).

B’s account of the assault

[8] On 20 March, four days after Mr and Mrs J were told of the allegation, the child safety officer, Ms Noble, spoke to B.  She asked him a number of what she described as “standard” questions about his private parts and who was allowed to touch them.  He said nothing about the appellant or about anyone having done anything untoward to him.  On 27 March she spoke to him again and asked him what were the things he did or did not like about the appellant.  He responded that there was nothing he did or did not like; the appellant was always at work during the day and night.  When asked by Ms Noble why he thought she wanted to speak to him, he answered that he did not know.  It was only when she asked him whether he had spoken to someone about the appellant that he said he had told Mr and Mrs J that the appellant had touched him on the private parts. 

[9] In his 28 March interview with a police officers and Ms Noble, B was asked to tell them some good things and some bad things about each of his foster parents, and said there were only good things.  Then he was asked to say some good things about the appellant.  He said he did not really know about the appellant because he did not see him; he went to work all the time.  He had only seen him once or twice and it was last month when he had last seen him.  Asked what had happened then, he said he could not remember.  Pressed more directly to tell “some bad things about [the appellant]”, he answered, “Nothing, because I never hardly see him”.  He was reminded that he had spoken to Ms Noble previously but could not recall what he had said to her. 

[10]  B’s recollection was prompted by a reminder that he had spoken to Mr and Mrs J about the appellant.  He said that “ages and ages and ages ago” the appellant had “touched [his] rude part”.  Over the course of questioning, his account emerged as follows:  it was in the dark; it was cold; he was in the lower bunk and K was in the upper bunk, asleep.  The appellant had come into their room and put his hand under his pyjama pants on his “rude part” and squeezed it.  (B demonstrated a squeezing action with his hand.)  B moved away.  The appellant was wearing work clothes which he thought were “kind of black”; if they were any different colour, he could not see.  He went back to sleep. 

[11]  B was asked how he knew it was the appellant and he answered, “Because I know how tall he was”.  Asked to expand, he said, “Because he were really tall and he was in his work shirt”.  He had been asleep with his eyes closed.  When asked, “What were your eyes like when he was doing that?” (i.e. when the appellant was touching his penis) he replied, “Really tired”.  Asked what else made him think it was the appellant, he said that he had heard his voice; while he was touching him, the appellant had said, “I like it”.

[12]  In the December 2008 session of pre-recorded evidence, B maintained that he had only seen the appellant on one occasion before that on which he had touched his penis, because the appellant was always at work.  The first time he saw him, the appellant had spoken to him for “a little while”.  He was sleeping with the bedroom door closed and the lights off.  Asked how he could see the appellant if it were really dark, he insisted that he did.  When pressed further he said it was, “because I turned on the – where we had like a lamp in our bedroom – I turned on”.  He went on to say that if he went to the toilet he could turn his lamp on.  He had done so and had seen the appellant.  Next, he said that he saw the appellant “was having a drink and everything”.  He turned his lamp off and went to bed.  Then the appellant came in.  He knew who it was because of how tall he was.  He was awake for two minutes.  His eyes were not closed when the appellant was touching him; they were “[s]ort of like a little bit open”. 

[13]  In a brief further cross-examination in April 2009, B was asked to describe the appellant’s work clothes.  He said that there was an orange shirt with silver stripes and black trousers, which the appellant wore every time he went to work.  He used to see the appellant getting home from work at 11 o'clock at night, although he also saw him coming home from work in the daytime.

[14]  K was also cross-examined on two separate occasions, principally about his lack of enthusiasm for living with Mr and Mrs J.  On the occasion of the first hearing in December 2008, he confirmed in cross-examination that B was given to “talk[ing] dirty” constantly and before his allegation concerning the appellant emerged.  He was also asked whether B had once tried to grab him “on the privates”, and volunteered the information that B “was trying to give [an] example of what Josh was doing to him”.  Counsel confirmed that the name of the person was “Josh”, but the subject was not further explored by either counsel.  In April 2009 when cross-examined, K was asked if he had ever seen the appellant in “work clothes like a uniform” and responded that the appellant had a buttoned-up shirt, some shorts and some denim jeans.  Questioned further about whether he had seen any uniform “like a special shirt or something that you have to wear if you work somewhere”, he said that the appellant had a Telstra shirt.

[15]  The case was complicated by evidence as to a system of alarms in the foster home.  Mr and Mrs J explained that each of the upstairs bedrooms was fitted with an alarm triggered when the door was opened.  Each alarm was set by a switch located in Mr and Mrs J’s bedroom, and also sounded there, continuing as long as the door remained open.  Mr and Mrs J’s practice was to set the alarm over a period between seven and 10 days when a new foster child had moved into a room, so that the alarm in the bedroom occupied by B and K would have been operating until somewhere between 7 and 10 February 2008.  Their alarm had been set once more on 24 February, because K ran away from the home.  It was still being set each night at the time at which B made the allegation that he had been sexually assaulted 

[16]  Mr J said he was unaware of any occasion on which he and his wife had slept through an alarm, and one of them would always get up to see what had triggered it.  He had no recollection of the alarm connected to the room occupied by B and K going off in the six weeks prior to B’s complaint of sexual assault.  When B was asked about the alarm system in his interview with police, he began by saying that if the door to his room was opened there would be a noise; but Mr J, he said, had thought it was only the children going to the toilet.  That answer appeared to relate to the night of the alleged assault, but when he was asked whether he had heard the alarm that night, B said that he had not.  In the first of the pre-recorded hearings, he said the alarm had not gone off that night because Mr J forgot to turn it on. 

[17]  The evidence about the alarm and the dates on which it was set seems to have been the impetus for the Crown prosecutor at trial, in his address, to suggest to the jury that the offence must have been committed on either 11 or 12 February.  Those were days before B’s eighth birthday on which the alarm was not set; and they were also days on which the appellant had (as was the subject of admission at the trial) gone to his work at Telstra, returning home at 10.00 pm.

Whether the verdict was unreasonable

[18]  Here, counsel for the appellant pointed to the inconsistencies in B’s account of when the incident happened, taken with the fact that the bedroom alarm had not gone off, as leading to a conclusion that there had been no illicit entering of the boys’ room at night.  He emphasised also the inconsistency between B’s account to Mr and Mrs J of the appellant’s having “played with [his] privates all night” and his later description of a single brief incident in which his penis was squeezed.  Principally, however, counsel for the appellant focussed on the poor quality of the evidence identifying the appellant.

[19]  In my view, while the inconsistencies in B’s accounts of the incident and when it occurred are of some concern, they would not, of themselves, be fatal to the verdict.  Much more problematic is the question whether, assuming B’s account of the indecent dealing to be true, the jury could safely have concluded that the appellant was responsible.  B’s assertion that he had seen the appellant when he turned his light on prior to the event had the hallmarks of invention, given the evolving nature of his description of it under cross-examination; the lateness of its emergence; and the fact that it was offered under some pressure from questions about how he could have recognised the appellant.  In any event, even if one accepted what he said on that score, it did not follow that it was the appellant who entered his room; and B acknowledged that when the offender entered the bedroom, it was in darkness.

[20]  B’s identification of the appellant as the offender rested on three bases; that the offender was “really tall”; that he recognised the appellant’s voice; and that the appellant was wearing his work clothes.  As to the first, the record does not disclose what the appellant’s height was; let alone whether it was anything out of the ordinary.  If what B had said in the record of interview about the number of times he had seen the appellant was to be believed, his ability to recognise him by height was limited by two factors: that this was only the second time he had ever seen him; and, according to what he had said in the pre-recorded hearing, his opportunity to observe the intruder was confined to two minutes.  Nor was there any evidence of the height of the other males in the house: Mr J, his 16 year old son, or the other male foster children (whose ages were not given).  The jury might have been able to form some view of the respective heights of the appellant and Mr J, having seen them, but as to the other three boys of whom one, at least, was the same age as the appellant, there was no evidence which would allow their exclusion as the intruder in B’s bedroom.

[21]  B’s claim that he had heard the appellant’s voice saying, “I like it”, has some aspects of improbability about it and was made in circumstances where he was being encouraged to offer some further reasons for identifying him; but taken at its highest, it was a very slender basis for an identification of someone to whom he had only spoken once, and then briefly.  The identification of the appellant as wearing work clothes must be suspect, given B’s initial statement that the clothes were “kind of black” and that he could not make out any other colour in the darkness of the room.  In the light of that evidence, B’s later claim in April 2009 of having seen an orange shirt with silver stripes and black trousers, which the appellant wore every time he had to go to work, must be doubted.  And neither that claim nor K’s claim that the appellant had a Telstra shirt could be given much weight in light of some unchallenged evidence from Mr J, which was that the appellant worked in a call centre and never wore anything but casual clothes to work.

[22]  The unsatisfactoriness of the purported identification of the appellant as the perpetrator of the assault makes it impossible for me to be satisfied beyond reasonable doubt of his guilt.  In M v The Queen,[1] the High Court said of the circumstance in which an appellate court experiences such a doubt that,

“[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”[2]

Here the jury enjoyed no such advantage.  I have viewed the tapes of B’s and K’s police interviews and pre-recorded evidence, but they offer nothing which would resolve that doubt.  In the absence of convincing evidence that the appellant was the offender, it was not open to the jury to be satisfied beyond reasonable doubt of his guilt.  The conviction should be set aside and a verdict of acquittal entered.

[23]FRASER JA:  I agree with the reasons of Holmes JA and the orders proposed by her Honour.

[24]  WHITE JA:  I agree with the reasons of Holmes JA and the orders proposed by her Honour.

Footnotes

[1] (1994) 181 CLR 487.

[2] At 494.

Close

Editorial Notes

  • Published Case Name:

    R v CAX

  • Shortened Case Name:

    R v CAX

  • MNC:

    [2010] QCA 121

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Fraser JA, White JA

  • Date:

    25 May 2010

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC No 85 of 2009 (no citation)-Defendant found guilty of one count of unlawfully and indecently dealing with a child under the age of 12 years
Appeal Determined (QCA)[2010] QCA 12125 May 2010Defendant appealed against conviction; appeal allowed, conviction set aside and verdict of acquittal entered: Holmes, Fraser and White JJA

Appeal Status

Appeal Determined (QCA)

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