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- Appeal Determined (QCA)
R v Quinlan QCA 132
SUPREME COURT OF QUEENSLAND
Court of Appeal
Appeal against Conviction & Sentence
22 May 2012
8 May 2012
Fraser JA and Fryberg and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1.Appeal against conviction dismissed.
2.Application for leave to appeal against sentence refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant found guilty by jury and convicted of one count of sexual assault and sentenced to six months imprisonment, suspended after seven weeks for an operational period of 12 months – where appellant committed offence whilst driving complainant home in appellant’s taxi – where appellant argued verdict unreasonable and cannot be supported having regard to evidence – where appellant argued jury failed to give adequate attention to video evidence – where appellant argued jury gave insufficient attention to inconsistencies in complainant’s evidence – whether there has been a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to six months imprisonment, suspended after seven weeks for an operational period of 12 months – where appellant argued no sentence should have been imposed – whether the sentencing judge erred
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
MFA v The Queen (2002) 213 CLR 606;  HCA 53, cited
R v Jones  QCA 450 , considered
R v Libl, ex-parte Attorney-General for the State of Queensland  QCA 63 , considered
R v Verma (unreported, indictment No 1125 of 2011, Mc Gill SC DCJ, 22 September 2011), considered
R v Watson  QCA 158 , considered
The appellant appeared on his own behalf
D C Boyle for the respondent
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
 FRASER JA: The appellant was found guilty by a jury and convicted of one count of sexual assault after a three day trial in the Cairns District Court. He has appealed against his conviction and he has applied for leave to appeal against his sentence of six months imprisonment, suspended after seven weeks for an operational period of 12 months.
Appeal against conviction
 The grounds of appeal are:
“1.The verdicts were unreasonable and cannot be supported having regard to the evidence.
2.The jury failed to give any, or any adequate, attention to the video of the interior of the taxi which was installed to guard against false allegations against taxi drivers, and which showed no action on the part of the Appellant which supported the allegation made by the complainant.
3.The jury gave insufficient attention to the inconsistencies in the complainant's version which were demonstrably false.”
 Ground 1 raises the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Grounds 2 and 3 are really particular aspects of ground 1. It is convenient to consider them together with other features of the evidence emphasised in the appellant’s argument.
 The Crown case was that the 56 year old appellant committed the offence whilst driving the 25 year old complainant in his taxi from the Cairns CBD to her parents’ house in Whitfield. The complainant had been drinking at the Heritage Hotel. Her evidence was that she had drunk two or three cans of pre-mixed bourbon every hour from midnight until 4.00 am, she left the hotel at 5.00 am, and she and a male passenger got into the appellant’s taxi in Lake Street. The complainant gave evidence that, after the male passenger was dropped off and the taxi continued on towards the complainant’s parents’ house, the appellant said to her, “You’ve got a nice set of lungs on you”. The appellant asked her if that was okay and she responded “Ah yeah, okay”; she gave evidence that she said this because she didn’t know what the appellant meant by the reference to “lungs”. The appellant then placed his left hand on and squeezed her right breast. The squeeze was not hard and it was not long, and he then let go. She agreed in cross-examination that after the passenger was dropped off, she just remembered the appellant saying, “you’ve got a nice set of lungs” and he then “grabbed my boobs”. She said that “[i]t is a bit of blur, but I can remember him grabbing my boobs”. She denied defence counsel’s suggestion that the appellant had not touched her.
 The complainant gave evidence that upon arrival home she took note of the taxi number. When she walked into the house and her mother asked her how her night had been, she replied, “It was good up until the taxi driver, he just grabbed my boob”. The complainant’s mother gave evidence that the complainant made such a complaint to her that morning. The complainant was affected by alcohol but was able to walk and speak normally. The complainant’s mother contacted the taxi company and the police.
 The investigating police officer gave evidence that when he spoke to the complainant at 8.00 am she was lucid and talking clearly. The police officer agreed in cross-examination that the complainant referred to the taxi waiting at lights to turn on to Reservoir Road when some words were spoken, after which the driver grabbed her on the “boobs”. The investigating police officer interviewed the appellant later the same morning. The appellant agreed that the complainant had been a passenger in his taxi earlier that morning. He denied that he had grabbed the complainant’s breast. The appellant said that the complainant was very intoxicated.
 The appellant made the following statements in the course of the interview:
“QUINLAN: Okay. Um, in the meanwhile in that um she was pulling her breast back and forwards and that there and um pulling faces, um, if the film works out you’ll see that.
SGT McLEISH: Yeah.
QUINLAN: Um, and then she was ah talking about a bit of sex and that there and um and I said to her, um, ‘You’ve got very nice udders. You’ve got one hanging out there.’ And um and I - I didn’t touch - really touch her. I just pointed over that way like that and my hand, you’ll see that on the - like that and - and then she ah I suppose about um half a minute later she put her - two arms across her breast and um and she didn’t say anything. She just put that over there.
SGT McLEISH: Okay.
QUINLAN: And she didn’t say a word.
SGT McLEISH: Whereabouts in the taxi trip did this happen? Do you know whereabouts you were located when this happened?
QUINLAN: Ah, going along McManus I think I reckon it did.
SGT McLEISH: Okay. All right. And she - at that time she’s the only occupant in the taxi, the other fella’s--
QUINLAN: That’s correct. That’s correct.
SGT McLEISH: --hopped out.
QUINLAN: Hopped out at Mayers Street.
SGT McLEISH: Okay. When you’ve ah reached over and touched her--
QUINLAN: I didn’t touch her.
SGT McLEISH: You didn’t touch her?
QUINLAN: I - I - I don’t reckon I did. I just - I put me hand over there and I said ‘You’ve got one of your udders are hanging out - your tit’s hanging out’, but I didn’t - I just pointed over like that to her.
SGT McLEISH: So you’re sure you didn’t touch her?
QUINLAN: That’s a hard one. Um, if I did it would be very, very soft if I did. Yeah.
SGT McLEISH: Okay.
SGT McLEISH: And--
QUINLAN: If I did.”
 The interview continued:
“SGT McLEISH: And if you did whereabouts did you touch her?
QUINLAN: It would have been on the - on the tit.
SGT McLEISH: Okay. And is that her tit closest to you? So that would be her right--
QUINLAN: That’s correct.
SGT McLEISH: --right side.
QUINLAN: That’s correct.
SGT McLEISH: Yeah. And when, if you did touch her, when you - if it did happen what did - what was her instant reaction? What did she do straight after you touched her?
QUINLAN: Didn’t - didn’t do anything. I went back driving and she was talking and then she put her arms across her um across - her arms across her breast.”
 The appellant also told the police officer that he had said to the complainant she had “[n]ice tits” “[b]ecause they were hanging out”. When asked what was the purpose of him putting his hand in the direction of the complainant’s right breast, when he may or may not have touched her, the appellant said “she seemed to be very, very, very lonely…she was down…to lift her morale but not - not to go any further than that.” The appellant subsequently told the police officer that:
“… When she was pulling her tits around like that there ah when we’re going up um Reservoir Road and that, um, after she was that and I said to her she’s got very nice sets of tits and ah the sticking out, um, and then I leant over and I - I put my hand, I didn’t think I touched her but anyway I put me hand over like that there and um but um, no, she - I - I can’t see how she got upset because um she was very happy when she got out of the car and that. She was laughing and joking.”
 The prosecutor tendered the taxi’s internal security system footage which consisted of images captured inside the taxi every three seconds, followed by periods of up to 18 seconds when no image was recorded if there was no braking or accelerating of the taxi. No contact between the appellant and the complainant was shown on the images. The prosecutor made a formal admission that “DNA samples were taken from the top of the right breast of [the complainant] and from the front right of her top. Forensic scientists were unable to obtain a DNA [sample] suitable for comparison.”
 The appellant gave evidence in which he unequivocally denied touching the complainant’s breast. He said that he did use the words “nice udders” and “nice tits”, that he pointed at her exposed breasts for a “split second”, and that his hand then went straight back on to the steering wheel. The appellant’s right arm had been amputated below the elbow, something which the complainant did not notice until she gave evidence at the trial. He used his forefinger to point at the complainant’s exposed breast. The appellant’s evidence was that he steered the car using the palm and the fingers of his left hand and the stump of his right arm. The prosecutor put to the appellant in cross-examination that, in his demonstration during his police interview, he had not pointed at the complainant’s breast but had pushed out towards her with the palm of his left hand. The appellant at first denied that and said that he had pointed, but he subsequently agreed that he had demonstrated a different action with his hand.
 The appellant called the call centre manager at the taxi company, Mr Rutledge, to give evidence about the company’s in-built GPS tracking system and to produce records of the relevant trip. Mr Rutledge gave evidence that there was a snapshot of the taxi’s position on the map about every 20 or 30 seconds and the system also recorded an average speed between two points. There was an 11 second gap between the record taken at the roundabout at Pease Street and the record taken at the lights at the intersection of Pease Street and Reservoir Road. At the second point the system showed that the average speed of the taxi was 30 km/hr.
The verdict was unreasonable and cannot be supported having regard to the evidence
 The appellant summarised his argument under four headings. First, he referred to “the lack of DNA …” on the complainant’s shirt. The appellant referred to information which he said he had obtained from medical professionals and police officers that DNA is left behind on a person just by brushing up against them. He argued that the absence of DNA on the complainant’s clothing was evidence that he was innocent. This argument was unsupported by evidence and it misinterpreted the admission made by the Crown. The admission was not that there was no DNA found on the complainant’s clothing. DNA was found, but the forensic scientists were unable to obtain a DNA sample which was “suitable for comparison”. That is not evidence that there was no DNA from the appellant on the complainant or on her clothing. There was also no evidence that the inability to find a suitable DNA sample gave rise to a doubt whether the appellant had touched the appellant.
 The appellant’s second point was that “[i]n the photos taken throughout the taxi ride, there is no proof that I touched the woman, as she alleges I did”. That is so, but it is also the case that the images did not reveal that the appellant pointed or motioned towards the appellant’s breast, as he described in evidence and in his police interview. The absence of any such image is readily explicable by the evidence that there were intervals of three or 18 seconds between each image.
 The appellant’s third point was that there were “… numerous inconsistencies between my version of the events and the woman’s version of events.” It is evident that the jury rejected the appellant’s evidence. The appellant referred also to inconsistencies within the complainant’s own evidence, including the particular place in the road where she got into the taxi, the particular place where the taxi stopped on the way to the complainant’s parents’ house, whether the appellant touched her “boob” or “boobs”, and whether the taxi was moving or not when the appellant touched her. Inconsistencies of this kind are not irrelevant, but such inconsistencies are also unsurprising in the case of an honest witness.
 The appellant’s fourth point was that “[t]here are numerous inconsistencies between the woman’s version of events and her own mother’s”. In support of this ground the appellant referred to differences between the evidence of the complainant and her mother about the clothes the complainant returned home in (whilst she was away from her parents’ home she had swapped the top she was wearing with the top worn by her cousin), the time she left home, and the extent of the complainant’s intoxication. These inconsistencies are also not of such significance as necessarily to give rise to a doubt about the truthfulness or reliability of the complainant’s evidence of the alleged offence. The degree of the complainant’s intoxication was itself a relevant consideration for the jury, but her evidence of the alleged offence was nevertheless apparently credible and it was essentially consistent with the evidence of her prompt complaint to her mother.
 The appellant’s fifth point was that the taxi GPS positioning system data proved that the taxi only “… stopped once throughout the entire fare.” The appellant argued that this data was inconsistent with evidence given by the complainant that the offence happened immediately after the taxi had slowed down and stopped at the traffic lights at an intersection at Reservoir Road. However, whilst the complainant said in cross-examination that she could remember waiting at the lights, she immediately went on to agree that she could not “clearly remember” waiting at the lights. In any event, Mr Rutledge’s evidence was not to the effect that the GPS data indicated that the taxi did not stop where the complainant gave evidence that it did stop. Mr Rutledge gave a negative answer to the question whether the system gave “… an instantaneous feed for a vehicle at any point on that road…”, and he gave evidence that the reading of 30 km/ph at the relevant intersection was the average speed between two identified points in the data.
 The trial judge directed the jury in conventional terms about how the oral evidence should be assessed, including that the jury was to consider whether the witness seemed to have a good memory and whether the witness had said something different at an earlier time. The jury was reminded by the trial judge of the inconsistencies in the complainant’s evidence relied upon in defence counsel’s address. The trial judge also directed the jury that the prosecution case depended entirely upon the jury accepting the complainant’s evidence as true and accurate beyond reasonable doubt, despite the appellant’s evidence.
 The jury, presumably heeding those directions, must have accepted the complainant’s evidence of the alleged offence. In rejecting the appellant’s unequivocal evidence that he pointed at but did not touch the appellant’s breast, the jury might reasonably have taken into account the inconsistency between that evidence and his equivocal statements to the investigating police officer quoted in  of these reasons. (I have not attributed weight to the appellant’s statements on that topic in response to the police officer’s subsequent questions. Those questions were apt to elicit unreliable answers because they were premised upon the hypothesis, which the appellant did not accept, that he had touched the complainant.) Having regard in particular to the complainant’s essentially consistent evidence of the alleged offence and the essential consistency between that evidence and her mother’s evidence of her complaint, it was open to the jury to find the appellant guilty beyond reasonable doubt notwithstanding the appellant’s evidence.
 The appellant advanced two new arguments on appeal. First, he submitted that defence counsel should have called evidence from a colleague of the appellant’s who completed a statutory declaration which, the appellant asserted, confirmed the appellant’s evidence about the place where the complainant and her male companion got into the taxi. However, that the complainant’s evidence on that point was wrong was ultimately not in issue. Footage downloaded from the taxi showed that the complainant was picked up on the same side of the street as the Heritage Hotel 50 to 100 metres further up the road. Both the complainant and the investigating police officer agreed in cross-examination that her evidence that she had got into the taxi on the opposite side of the street from the hotel was wrong. In summing up, the trial judge reminded the jury both of the prosecutor’s submission that the complainant had made reasonable concessions, including the concession that she must have been wrong about this point, and defence counsel’s reliance upon that mistake as an inconsistency in her evidence. Further evidence on the point was unnecessary. Defence counsel’s omission to call such evidence therefore did not deprive the appellant of a substantial or significant possibility that the jury would have acquitted him.
 Secondly, the appellant submitted that he could not have committed the offence in the way described by the complainant because of the consequences of a workplace accident he suffered when he was 17 years old. In addition to the amputation of his right arm just after the elbow joint, his left shoulder has screws in it and he has “broken tendons”. The appellant asserted that it was impossible for him to manoeuvre his arm in to the position required to touch the complainant in the way she described. He observed that he was not asked to demonstrate this in evidence and that no evidence was adduced to demonstrate that his shoulder did not function properly. The assertion that he could not move his left arm in the way described by the complainant is not readily reconcilable with the evidence of his police interview, in which he countenanced the possibility that he touched the complainant’s right breast with his left hand whilst driving the taxi. The appellant’s evidence at the trial also suggested that he could steer the taxi with the stump of his right arm whilst briefly taking his left hand off the steering wheel to point at the complainant’s breast. The appellant did not seek to adduce evidence to support his assertion, made for the first time on appeal, that he could not have committed the offence in the way alleged. I am not persuaded that there might have been a miscarriage of justice on this ground.
 The appeal against conviction should be dismissed.
 Although the appellant’s notice of appeal refers to an appeal against both conviction and sentence, it does not include any grounds of appeal against sentence. The appellant did not articulate any such ground in his written and oral submissions, but he submitted that no sentence should have been imposed.
 In sentencing the appellant, the trial judge took into account in mitigation of sentence that the appellant committed the offence in a “moment of madness”, at the time of sentence he was a 57 year old man who had been forced to live with his disability since he was 17, he was a person of otherwise good character with no prior convictions who had raised his own family, his taxi licence had been suspended, and it was highly unlikely that he would ever be able to work again as a taxi driver after he was convicted.
 The trial judge also took into account aggravating features of the offence. The trial judge referred to the sentencing remarks which were endorsed by Williams JA, with whose reasons Fitzgerald P and Byrne J agreed, in R v Watson  QCA 158 at p 3:
“Taxi drivers play an important role in our community because they, apart from providing assistance to people who want transport, provide places of refuge especially to women and especially women at night-time. It is absolutely important in our community that all women, whatever age, have faith and comfort in the security and safety of the taxi driver with whom they travel alone at night.”
 The trial judge referred also to the following remarks made by McGill DCJ in R v Verma (unreported, indictment No 1125 of 2011):
“The fact that it involved an offence against an unaccompanied young woman who was travelling as a passenger in your taxi is a significant matter in relation to penalty. You were in a position where you, as the taxi driver, were responsible for her safety during the journey and instead of taking care of her safety you threatened it. It is important that people who use taxis should be able to trust the drivers of the taxis, in the same way as taxi drivers should not be the subject of violent attacks and so on from the passengers. Accordingly, because of that feature, general deterrence is a matter of particular importance, and there is some seriousness over and above the actual seriousness associated with the immediate nature of the offending.”
 The trial judge observed that it was necessary to take into account that the appellant was in a position of trust in relation to his passenger, a vulnerable young woman who had been drinking; it was his obligation to get her home safely and not to take advantage of that situation, albeit by a “fleeting moment of stupidity”. The trial judge considered that general deterrence was a significant factor in this sentence. The trial judge also found that that the appellant had not shown any remorse.
 The respondent referred to the sentence of one and a half years imprisonment with a recommendation for consideration for parole after six months which was imposed on appeal in R v Libl, ex-parte Attorney-General for the State of Queensland  QCA 63. It is not necessary to discuss the facts of the case. It was a much more serious case and that was reflected in the much more severe sentence.
 In R v Jones  QCA 450, a bus driver took advantage of his position of authority over a child whom he frequently carried to and from a school. He squeezed her breasts with his hand outside her clothing, repeatedly attempted to kiss her on the mouth, and put his hand under her shirt and moved it towards her breast. That was more serious because it was prolonged and was committed against a child. McPherson JA, with whose reasons Mackenzie and Wilson JJ agreed, said that it was “… generally true to say that when an adult commits a sexual offence on a young person, they must expect to undergo imprisonment unless there are some exceptional circumstances which persuade the Judge that that should not take place in that particular case.” That offender’s sentence of four months imprisonment was less severe than the sentence of six months imprisonment imposed upon the appellant, but that offender was not given the benefit of early suspension of the sentence which was afforded to the appellant even though he did not plead guilty. Furthermore, the decision in R v Jones was only that the sentence was not manifestly excessive. Accordingly that decision does not suggest that the appellant’s sentence is manifestly excessive.
 This offence was not nearly as serious as many others of this nature which come before the courts, it was committed during a very short time, it was not submitted to have resulted in serious or long term consequences for the complainant, and there were significant factors justifying mitigation of the sentence. Even so, a sentence of imprisonment with seven weeks actual custody was within the sentencing discretion having regard to the appellant’s significant breach of trust towards a vulnerable passenger in his taxi, the requirement for a deterrent sentence, and the appellant’s inability to claim the benefit of remorse, co-operation with the authorities, or a plea of guilty.
 The length of the head sentence has given me some concern. The important requirement that the sentence deter others from committing such offences might have been satisfied by a shorter term than six months, and the apparently inevitable loss of the appellant’s taxi licence must be of real significance for a man of his age with a disability. Even so, taking into account those and the other considerations mentioned by the sentencing judge, and the provision for suspension of the imprisonment after seven weeks, the sentence imposed upon the appellant was not manifestly excessive. I have not found any error in the exercise of the sentencing discretion.
 I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
 FRYBERG J: I agree with the orders proposed by Fraser JA and with his Honour’s reasons for them.
 MARTIN J: I agree with the orders proposed by Fraser JA and with his Honour’s reasons for them.
 See M v The Queen (1994) 181 CLR 487 at 493, 495 and MFA v The Queen (2002) 213 CLR 606 at 615.
- Published Case Name:
R v Quinlan
- Shortened Case Name:
R v Quinlan
 QCA 132
Fraser JA, Fryberg J, Martin J
22 May 2012