R v Caulfield[2012] QCA 204

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with the orders proposed by His Honour, and with his reasons.

[2] MUIR JA: Introduction The appellant was convicted after a trial in the District Court of one count of common assault and two counts of indecent assault on a 16 year old student.  The appellant was then aged 52.

[3] He was sentenced as follows:

Count 1One month imprisonment, wholly suspended with an operational period of two years.

Count 2Six months imprisonment, wholly suspended with an operational period of two years.

Count 3Six months imprisonment, suspended as at 18 September 2012 (three months less one day) with an operational period of two years.

[4] The appellant appeals against his convictions and seeks leave to appeal against the sentences.

Relevant evidence

[5] At the time of the offending conduct, the complainant was living with the appellant and his wife.  She had moved in with them in about January 2011 in consequence of an unhappy relationship with her mother and stepfather.  The complainant’s family later moved to a country town in New South Wales in about May 2011.  The complainant was not included in the relocation and there was evidence that there was some deterioration in her behaviour after this time. 

[6] On Saturday 9 July 2011, the complainant, who had been working in a supermarket, returned home.  The appellant’s wife was at work and the appellant and a male neighbour, who frequently socialised with the appellant and his wife, were in the lounge room of the house with the complainant.  The neighbour rubbed the complainant’s hair a number of times.  The complainant went upstairs, changed out of her work clothes into tracksuit pants, a long sleeved top and a jacket with a hood.  After some time had elapsed, the complainant went to a shed in the yard of the house with the appellant who collected some bottles of beer.  On their way back to the house, they met the neighbour at the gate.  The men commented on the jeans the complainant had worn the previous day and the appellant, on two or three occasions, patted and grabbed the complainant’s buttocks (Count 1).  She “just walked off”.

[7] Subsequently, when the complainant and the two men returned to the lounge room, the neighbour engaged in sexual banter and provided the complainant with a small quantity of pre-mixed bourbon and cola.  Later, in the kitchen, there was some discussion about the complainant’s texting with her mobile phone.  The appellant and the neighbour attempted to locate the mobile phone on the complainant’s person.  In that regard, the appellant “kept patting [her], trying to see if [her] phone was there…”  He patted the complainant’s chest, but “not specifically [her] breasts”.  After dinner, prior to the complainant leaving the kitchen to have a shower and dress for bed, the neighbour said that he would wash the complainant’s back.  The appellant remarked, “I’d come and wash more than your back”.

[8] After showering, the complainant dressed in a singlet, bra, her long top, pyjama shorts and a dressing gown and got into bed.  After the neighbour departed the appellant came into the complainant’s bedroom, got into bed with her and kissed her on the lips.  She pushed him away, saying, “[Your wife’s] going to be home”.  He then “started to kiss [her] neck a couple of times”.  This formed the basis of count 2.  She also said, “Get out”.  The appellant left, but “he would keep coming back”. 

[9] The count 3 incident occurred when the appellant “came back in and got under the blankets and… tried to touch [her] inappropriately… he was leaning over [her] and [she] was pushing [herself] away and he kept trying to touch [her] down [her] vagina”.  She “kept moving his hand away” and kept repeating that the appellant’s wife was going to be home.  She also said, “[Your wife’s] home.  You have to get out”.  The appellant managed to insert a hand up the leg of the complainant’s pyjama shorts and underwear and touched her for “a couple of seconds” on her genitals.  The complainant, at the time, was also saying, “Get out.  Just, get out”.

[10] On one or more of the occasions on which the appellant came into the complainant’s room, he said, “I’m so tempted”.

[11] The appellant did not give evidence on the trial.

[12] I now turn a consideration of the grounds of appeal.

The trial judge erred in holding that apologies made by the appellant to the complainant and to the complainant’s mother were capable of amounting to an admission against interest given their equivocal character

[13] The complainant gave evidence that the day after the offences were committed, after the appellant’s wife had gone to work, he came to her bedroom and said to her, “I’m sorry it never should have happened”.  Asked if she had told anyone, she said, “No”, although she had told her sister.  The appellant said, “Are you sure?”, to which the complainant responded, “Yes”.  He said, “Sorry” and she said, “It’s okay”.

[14] The complainant’s mother gave evidence that on 10 July 2011 the complainant, who was extremely upset and “could hardly talk”, telephoned her and said, “[The appellant] crawled into bed with me last night and tried kissing me and …touching me”.  The complainant said that she pushed him away and said to him “[Your wife] will be home soon.  You’re going to get us both into trouble”.  Nevertheless, the appellant “kept coming back and forward into the room saying, ‘I’m so tempted… I’m so tempted’”.  The complainant’s mother arranged for her mother to pick up the complainant and take her to her house.  The complainant’s mother then spoke to the appellant’s wife following which the appellant telephoned the complainant’s mother on her mobile phone.  This exchange took place:

“Did you have any conversation with Neville subsequent to that phone conversation?-- Yes.  He rang me about 20 past 9.

Yes?-- On my mobile, and he said, ‘I just had to ring and apologise for what I’ve done.’.

Did you say something?-- I said, ‘You’ve stepped over the line here, Nev.’.

Did he-----?-- ‘You’ve betrayed our trust.’.

Yes?-- And he kept saying, ‘I’m sorry, I’m sorry’, just over and over, ‘I’m sorry’, and then I said, ‘The only reason we’re not pressing charges is because of [your wife] and [the complainant].’, and he said, ‘I’m sorry, I’m sorry.’.  He asked to speak to my husband.  My husband didn’t want to speak to him, and I said, ‘At this point, Nev, your apology I can’t accept.’, and I hung up.

How did he sound when you were speaking to him, or he was speaking to you?-- He sounded like he was crying.  You know, he was upset with-----

So he sounded upset-----?-- Yeah-----

-----and like he was crying?-- He - he sounded upset, yes.”

[15] The appellant’s wife gave evidence to the following effect.  She said to the appellant, “I’ve just got a phone call from [the complainant’s mother]… have you got something to tell me?”  The appellant responded, “Yes… I got into bed with [the complainant] and I tickled her”.  The appellant’s wife did not tell the appellant what she had been told by the complainant’s mother.  After this exchange, the appellant said to her, “Look, can you get [the complainant’s mother and father] on the phone, I can’t see how something so silly or little could cause so much trouble”.  In cross-examination the appellant’s wife, when asked to comment on the appellant’s emotional state when he was on the phone to the complainant’s mother, said:

“…he seemed all right until, obviously he was talking to [the complainant’s mother] and then, obviously, when he was talking that's when he got a bit emotional because it sounds like [the complainant’s mother’s] reaction was not good.”

[16] The appellant argued that admissions against interest were admissible only if “capable of being found to be an unambiguous and unequivocal apology for and admission to” the subject offending.  The submission relied on the following observations of McMurdo P in R v PV; ex parte A-G (Qld):[1]

“This is not a case where there is any rational possibility on the present evidence that the respondent was, for example, joking, or merely responding to his wife’s stated intention to leave him, making the admissions ambiguous and therefore irrelevant and inadmissible. Although his statements to the girls’ mother were not admissions to the specific offences charged, in context they were capable of being found to be an unambiguous and unequivocal apology for and admission to interfering sexually with the complainants.”

[17] Counsel for the appellant submitted that the appellant’s apologies needed to be seen against the background that the appellant had volunteered to his wife that he had got into bed with the complainant and tickled her and there was no evidence that, at the time of the apologies, the appellant was aware that the complainant had alleged sexual misconduct.  It was submitted that, having regard to these matters, the apologies were not capable of being “an unambiguous and unequivocal” apology for sexual misconduct.  It was submitted also that, given the equivocal nature of the apologies, they should have been excluded in the exercise of the trial judge’s discretion.[2]

[18] R v PV is not authority for the proposition that an alleged admission is not admissible unless it is unambiguous and unequivocal in its terms.  If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.  It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given.  That conclusion is implicit in the second sentence of the above quotation from the reasons in R v PV.  There is ample authority supporting the proposition that it is for the jury to determine whether a statement, whether oral or written, viewed as a whole and in context constitutes an admission.[3]

[19] A court may quash a conviction founded solely on an equivocal confession.[4]  The cases supporting that proposition implicitly recognise that words alleged by the prosecution to constitute a confession are not inadmissible merely because they are equivocal.  The conviction in this case, in any event, was based on far more than the appellant’s admissions.  It rested principally on the evidence of the complainant.  It was for the jury to evaluate whether the appellant’s statements to the complainant and to the complainant’s mother should be regarded as admissions of sexual misconduct.  It was open to the jury to reject the appellant’s explanation that he got into bed with the complainant and tickled her as inconsistent with the apologies to the complainant and her mother.  They were entitled also to have regard to the complainant’s mother’s evidence of the appellant’s distress when she was speaking to him on the telephone.  That evidence, which was unchallenged in cross-examination, was capable of being regarded by the jury as an admission by conduct.  It was also inconsistent with the appellant’s tickling in bed explanation.

[20] There was no proper basis for the exclusion of the evidence under consideration.  It was for the jury to determine what use should be made of it.  It was not dangerous for the jury to act on the evidence and its admission caused no unfairness to the appellant.  Consequently, this ground was not made out.

The jury’s verdict was unsafe and unsatisfactory

[21] The appellant argued that the jury’s verdict is unreasonable because:

1. the complainant’s evidence is largely uncorroborated;

2. the complainant’s allegations are inconsistent with evidence of the neighbour, a Crown witness, who was alleged to have been present during the conduct constituting count 1;

3. the complainant’s allegations are inconsistent with her telephone usage;

4. the complainant’s evidence on counts 2 and 3 is inconsistent with her police statement;

5. there was a lack of complaint evidence which was also inconsistent;

6. the complainant continued to remain in the presence of the appellant after the count 1 incident and the alleged sexual banter is inconsistent with her allegations; and

7. the complainant had behavioural difficulties at the time of the alleged offending.

[22] The complainant’s credibility received some support from her complaints to her mother and sister and a degree of corroboration from the appellant’s admissions. 

[23] I will now address each of these contentions.

[24] The following matters were referred to in relation to the second contention.  The neighbour denied the complainant’s assertions that there had been inappropriate conversations with, and remarks to, the complainant on 9 July 2011.  He denied touching the complainant and giving her liquor and hearing or witnessing the appellant committing count 1 or otherwise engaging in the discreditable conduct alleged by the complainant.  His evidence, on matters of detail, such as what was eaten for dinner and the location of the house that the neighbour went to, was inconsistent with that of the complainant. 

[25] The jury were entitled to accept the evidence of the complainant in preference to that of the neighbour.  Moreover, the neighbour was not alleged to have been present when the acts constituting counts 2 and 3 were perpetrated.

[26] In support of the third point, counsel for the appellant contended as follows.  The complainant was texting a male friend and talking on her mobile phone to that friend at about the time when counts 2 and 3 are alleged to have occurred.  The neighbour’s evidence was that he arrived home at 8.32 pm and that it took him two to three minutes to get home from the appellant’s house.  The complainant estimated that the conduct of the appellant from when he first entered her room until the appearance of the headlights of his wife’s car was about 15 minutes.  She estimated that the appellant’s wife arrived home between 8.45 pm and 9.00 pm.  The appellant’s wife thought that she arrived home at about 8.50 pm. 

[27] Between 8.30 pm and 9.00 pm, by which time the offending must have occurred, the complainant sent a number of text messages and had two telephone conversations with her friend.  At 8.37 pm she sent a text message to her sister in which she said, inter alia, “[the appellant] is so weird”.  In cross-examination she said that this message “must have” been sent after the offending conduct. 

[28] The complainant spoke to the friend for three minutes and 26 seconds at 8.37 pm and at 8.42 pm commenced another telephone call to him lasting three minutes and 23 seconds.  The complainant sent him various text messages between 8.47 and 9.08 pm.  He was not called to give evidence and no preliminary complaint was made to him.  The appellant also relies on the fact that this “telephone activity” was not revealed by the complainant in her police statement or her evidence-in-chief.

[29] The evidence was that the complainant generally spent a great deal of time speaking on her mobile and texting.  The complainant, unsurprisingly, was unable to be precise about timings and the appellant’s wife’s time estimates were simply that.  The complainant did not suggest that the incidents in the bedroom took place over a lengthy period and it was open to the jury to conclude that there was time available for the acts alleged by the complainant to have occurred as alleged. 

[30] As counsel for the appellant submitted, the complainant gave evidence, in respect of the count 2 incident, that the appellant was lying facing her with his hands over her shoulders and touching the bed.  In cross-examination she said, “[The appellant] then leaned over me”.  She referred to his kissing her and said that she then sat and that the appellant “kind of sat up a bit”.  Counsel for the appellant also referred to the fact that in her evidence the complainant had the appellant with his arms over her shoulders whereas in her statement there was no mention of her pushing him.  The later account is fuller than the earlier, but the two accounts are not necessarily inconsistent. 

[31] In relation to count 3, the alleged discrepancy was that, in the complainant’s evidence, she had the offending conduct occurring when she and the appellant were kneeling on the bed facing each other whereas in her statement she said that she and the appellant were lying down.

[32] The precise positioning of the complainant and the appellant was not a central or critical aspect of the complainant’s allegations.  The jury could accept the existence of an inconsistency without rejecting the essential features of the complainant’s account.  It was also open to the jury to conclude that the respective positions of the appellant and the complainant were unlikely to have been static and that the complainant could easily have been mistaken about precise positioning without being regarded as a generally unreliable witness.  In cross-examination the complainant was asked, “Most significant difference is that yesterday you speak about the touching actually happening after you got up, and after you’re sitting at the bed, and after [the appellant] had also got up?”.  The complainant replied, “Yes, that’s - that’s when it mostly happened, was when I had moved”.

[33] In respect of the complaint evidence, counsel for the appellant made the following points.  No complaint was made on 9 July to either the complainant’s sister or friend.  Reliance was placed on the complainant’s sister’s evidence that in a telephone conversation on 10 July the complainant said that the appellant “tried” to put his hand down her pants.  Reliance was placed additionally on the account of the complainant’s mother who also used the word “tried” when recounting what she had been told by the complainant.  The others matters relied on in this regard were the lack of complaint to her friend on 9 and 10 July and her informing a school guidance officer on 15 July that her uncle had climbed into bed with her but without informing him of any actual misconduct.

[34] The complainant had been called in to see the guidance officer without initially knowing the reason for his wanting to see her.  In the circumstances, the lack of detail assumes no particular significance.  Nor is the failure to complain to her male friend of much significance.  The male friend and the complainant were “quite good friends” who had worked together at a supermarket, but there was no “boyfriend/girlfriend” relationship.  The complainant’s reticence to discuss the alleged misconduct with her friend and the guidance officer is also explicable by the complainant’s stated desire that no charges be preferred against the appellant.

[35] The reason for the complainant’s failure to complain was not explored in cross-examination.  It also is explicable, at least in part, by the complainant’s desire that the appellant’s misconduct be handled within the family. 

[36] As counsel for the respondent submitted, the complaints made by the complainant to her sister and mother were largely consistent with the complainant’s evidence.  Counsel for the appellant emphasised the references in the mother’s and sister’s evidence to “trying” to kiss and “trying” to touch.  It was open to the jury to conclude that the complainant was in a better position than those to whom she had spoken in a distressed condition to provide the most accurate evidence of what had actually happened.  It was also open to the jury, for example, to conclude that even if the complainant had said to her mother that the appellant “tried kissing… and touching” her that she did not intend to convey that no kissing or touching had actually occurred.  The language used is consistent with a reference to attempts which were largely thwarted by the complainant’s words and conduct.

[37] It was submitted that it was unlikely that the complainant would have stayed in the company of the appellant and the neighbour in the house given her account of the inappropriate sexual innuendo and the touching of her buttocks which had occurred earlier.  She was questioned in cross-examination as to why she did not keep away from the men until the appellant’s wife arrived home and replied, “I don’t know”.  It does not appear to me that there is any substance in this point.  The evidence does not suggest that the complainant was distressed by the sexual banter.  Nor did she have any reason to suppose that the touching on her buttocks outside her clothing would escalate.  The evidence was that she enjoyed a good relationship with the appellant and his wife and had no reason to feel that she was not safe in his charge.  It would also have been something of an extreme step in the circumstances for the complainant to forego her evening meal because of the earlier events.

[38] The complainant’s behavioural problems were explored in evidence and referred to by the primary judge in his summing up.  There was no complaint about the summing up in this regard.  Moreover, there was no evidence that any behavioural problems manifested themselves in the complainant’s interaction with the appellant or his wife. 

[39] Looking at the matter generally, the alleged difficulties with the complainant’s evidence are all matters capable of resolution by the jury as constitutional triers of fact without their being compelled by reason and logic to reject the complainant as a witness of credit.

[40] Having reviewed the evidence, I have concluded that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant.  Accordingly, I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

[41] The appellant seeks leave to appeal against sentence on the grounds that the sentence imposed in respect of count 3 was manifestly excessive.  Counsel for the appellant argued that in respect of that sentence the trial judge failed to take into account, or to take into account sufficiently, that:

1. the appellant had no previous criminal convictions and a good work record;

2. the complainant, whilst young, was not particularly vulnerable;

3. the three offences occurred on the one day within a short period of time;

4. there were no threats of violence;

5. the conduct constituting the count 3 offence was touching that occurred only for “a couple of seconds”.

[42] In support of his submissions, counsel for the appellant relied on R v Manser.[5]Manser is not a particularly useful authority as the Court of Appeal was required to determine whether the sentence imposed at first instance was manifestly excessive rather than explore the upper limits of the appropriate sentencing range. 

[43] All of the matters relied on by counsel for the appellant are relevant, but there are countervailing considerations which support the sentence imposed in respect of count 3.  They are: the disparity in the ages of the appellant and the complainant; the appellant’s position of trust in fulfilling a quasi paternal role; and the appellant’s persistence despite the complainant’s oral and physical resistance.  When these matters are taken into account it cannot be said that the sentence imposed in respect of count 3 is “so unreasonable or plainly unjust” as to give rise to an inference that the sentencing discretion miscarried even though a wholly suspended sentence may well have been imposed in the proper exercise of the sentencing discretion.

[44] I accept the respondent’s submission that the sentences derive some support from R v Jones[6] and R v Manser.[7]  It receives some support also from R v Quick; ex parte A-G (Qld).[8]

[45] For the above reasons I would refuse leave to appeal against sentence.

[46] WHITE JA:  I have read the judgment of Muir JA and agree with those reasons that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.