Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

R v MBW[2013] QCA 123

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

24 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2013

JUDGES:

Margaret McMurdo P and North and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of four counts of indecent treatment of a child under 16 under his care – where the offences were fondlings of a minor character – where the appellant was not ordered to serve any more actual imprisonment than nine days already served in pre-sentence custody – where the appellant contends that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence by reason of the complainant's evidence being uncorroborated, contradicted by the appellant's evidence and an earlier statement by the complainant, implausible and lacking in detail in respect of count 4 – whether verdicts unreasonable and cannot be supported having regard to the evidence

Criminal Code 1899 (Qld), s 668E
Evidence Act 1977 (Qld), s 93A

COUNSEL:

J J Allen, with C McKinnon, for the appellant
R W Griffith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P:  The appellant was convicted in the Townsville District Court on 27 November 2012 of four counts of indecent treatment of a child under 16 under his care.  The offences were minor fondlings and the appellant was not ordered to serve any more actual imprisonment than nine days already served in pre-sentence custody.  He has appealed against his conviction contending that the guilty verdicts are unsafe and unsatisfactory having regard to all the evidence, that is, that they are unreasonable and cannot be supported by the evidence under s 668E Criminal Code 1899 (Qld).  This ground of appeal requires the Court to review the whole of the evidence at trial and to make up its own mind as to whether a jury could reasonably convict the appellant.

The evidence at trial

[2] The appellant was the de facto partner of the complainant's aunt, D.  The complainant was aged 13 and 14 at the time of the alleged offences, 14 when she gave a statement to police in August 2011 which became her evidence under s 93A Evidence Act 1977 (Qld) and 15 when she gave pre-recorded evidence under the Evidence Act for the trial.  When her mother died of cancer in 2009, she came to live with D and the appellant whom she referred to as her mother and grandfather.  The complainant alleged all the offences occurred in D's small three bedroom house between January and August 2011.

[3] The prosecution particularised the counts as follows:

  • Count 1:  The appellant touched the complainant's breasts on the verandah.
  • Count 2:  The appellant touched the complainant around the top of her legs and around her belly below her breasts in the lounge room.
  • Count 3:  The appellant touched the complainant's breasts in the hallway.
  • Count 4:  The appellant touched the complainant's breasts in the kitchen.[1]

[4] On 10 August 2011, police interviewed the complainant.  She said, "my grandad he keeps on touching me in places."[2]  She lived with D and the appellant, seven "brothers and sisters",[3] her nan and pop and other members of the extended family.  It is not clear whether her siblings were full siblings, cousins or simply other children in the care of D.  She and her sisters slept in one room, her brothers slept in another room and Aunty D and the appellant in a third.  Sometimes, including during 2011, a family from south-east Queensland lived in the boys' room while the boys slept in the living room.  Nan and pop slept downstairs.

[5] The first incident occurred at the start of 2011 when she was watching TV on the verandah.  Her back was really itchy and she asked the appellant to scratch it.  He put his hand up her back and started scratching and then slid his hand around to the front.  He touched her on her boobs for a few seconds.  He did not say anything.  She got up and walked inside.  It was night-time.  Aunty D was at bingo and everyone else was inside playing (count 1).

[6] The next time was in the lounge when she was watching TV.  She was lying down and had fallen asleep.  The other children were in bed.  She felt a cold hand go up her belly and up her leg.  She woke up and saw the appellant.  She pushed his hands away.  Her sister, Ad, got up and went to the toilet.  She followed Ad into the girls' room.  The appellant went into his room, packed "all of his stuff",[4] said that he was going and not to tell and walked outside.  She went downstairs and watched TV with pop and nan.  The appellant returned back upstairs and put his bag in his room.  She went to sleep and later D came home (count 2).

[7] One Friday she came home from youth group and was watching TV in the lounge room with Ad and her brother, W.  Ad went into the girls' room and fell asleep.  The complainant was sitting on the couch.  The appellant told her to come outside, but she went into the girls' room.  Later she walked down the hallway to go to the toilet and he followed her.  All the lights were off.  He grabbed her hand and pulled her back.  She kept walking.  He pulled her back again and put his hand up her shirt.  He touched her "boobs"[5] for a few seconds, rubbing them with one hand.  She pushed him away and said "no."[6]  She went to the toilet and then straight to the girls' room.  It was about 9.00 pm.  Everyone else in the house was either lying down in the lounge room or in their rooms.  Aunty D was at bingo.  Nan and pop were downstairs.  The family from south-east Queensland were not living in the house at the time (count 3).

[8] She remembered another time in the girls' room when Ad was asleep and the door was closed.  The appellant came into check on them and touched the complainant's "boobs and all that."[7]  This had happened a few times.  She heard the door open because sometimes it squeaks a bit.  Sometimes her sister, Ar, was in the room and other times Ar slept in the boys' room.  The complainant slept in the white bed and Ad in the black bed.  Ar usually slept with the complainant or Ad.  The appellant would check to see if the complainant and Ad were asleep and would look at them.  Sometimes he would sit on the floor and put his hand up the blanket and into her shirt.  Sometimes he would put his hands up her shorts.  He would not say anything.  He would rub her boobs for two or three minutes.  He would put his hands up her shorts into her pants and touch her vagina by rubbing it.  He had rubbed her on the outside of her vagina about seven or eight times.  This behaviour started before her birthday in May 2011 and continued on Fridays after youth group and Sundays after church.  He would stop because she moved around and made a disapproving noise.  They would not say anything to each other (uncharged acts).

[9] The first time she told anybody was earlier that day when she spoke to her school counsellor, V.  She was too scared to tell D a few weeks ago when D asked if anyone had been touching her as she was in trouble with D that day for getting into trouble at school.

[10] The last time something happened with the appellant, was, she thought, "just the other day"[8] when the appellant gave her a hug and slid his hand across her "boobs"[9] in the kitchen.  It was in the morning when everyone was getting ready for school.  He slid his hand across her "boobs"[10] for a few seconds, said good morning and walked off.  Aunty D was still asleep (count 4).  She did not tell her brothers and sisters.

[11] In her evidence at trial, she maintained that the appellant committed the offences largely in the way she told police.  The touching in count 1 was underneath her shirt and bra and some of the children were in the lounge room watching TV when it happened.  She did not remember which breast he touched.  The fondling in count 2 was on top of her clothing.  As to count 3, she could not remember which breast he fondled, but he touched her skin.  In her interview with police, she said that count 3 occurred as she was walking to the toilet but at trial, said that it happened when she was walking down the hallway to go to bed.  As to count 4, she could not remember which breast he touched, which hand he used, or whether he touched her skin or through her clothing.  She agreed that there were a lot of people in the house at the time of count 4.  She also agreed she had not been living with D and the appellant since she spoke to police.  In answer to the suggestion that she made up the allegations so that she did not have to live with D and the appellant anymore, she stated, "If I didn't want to live with them I would've told them."[11]

[12] D gave evidence that sometime during 2011 the complainant's school contacted D about the complainant's behaviour.  D asked the complainant why she had been misbehaving.  She specifically asked her if anybody was touching her.  The complainant said, "No, if anyone touched me I'll tell you, Mum."[12]

[13] The complainant's allegations first came to light on 10 August 2011 when she told V that her grandad has been touching her.  V gave evidence that the complainant told her that the appellant had been putting his hands in her shirt, on her boobs and in her pants when her mum was at bingo.  It had not happened for a week or so because the house was really full.  V spoke to the school principal and the police were informed.  V had had three or four discussions in May with the complainant relating to grief counselling and the complainant's social and emotional problems at school following her natural mother's death from cancer.  The complainant did not make any allegations against the appellant in those discussions.

[14] The appellant gave evidence.  He had been in a relationship with D for 18 or 19 years.  In 2010, the complainant came to live with them and their children or grandchildren.  At times another couple lived downstairs.  A family from south-east Queensland (a couple and their three children) also lived in their house.  Two uncles, DW and DR, sometimes lived against separate walls in the lounge room.  The complainant had a bit of a temper, would get upset with the other children and slam doors.  She was in trouble at school.  He twice spoke to her about her difficulties at school but she did not respond.  He denied ever touching her in an inappropriate sexual way.

[15] In cross-examination, he denied that he ever had an opportunity to be alone with her.  He could not have touched her as she said.  He conceded, however, that he would have passed her in the hallway, perhaps when no-one else was there.  He remembered one occasion during the day when the complainant asked him to scratch her back.  He refused as he did not think this was right.  He told her to ask D to scratch her back.  He maintained that he did not commit the offences.

The appellant's contentions

[16] The appellant emphasised the following matters.  The complainant's evidence was uncorroborated and contradicted by the appellant's evidence.  The offences were said to have occurred in a household of anywhere between seven to 13 people.  It is implausible that the conduct the complainant described could have occurred without someone else seeing it.

[17] The complainant could recall no details of the event said to constitute count 4, even though it was supposed to have occurred not long before the police interview.  In cross-examination, she could not recall whether he had touched her on her skin, on her bra or on her school uniform.  Her evidence generally lacked particularity.  Her allegations as to the uncharged acts occurring seven or eight times when the two other girls were present in the same room were especially implausible.

[18] Only a short time before she complained to police, the complainant told D that nobody had touched her.  She had a motive to make a false complaint, namely, so that she would not get into trouble for her behavioural problems at school.  She may have been engaging in attention seeking behaviour.  The appellant's evidence was persuasive and he was not discredited under cross-examination.

[19] An independent assessment of the evidence as to its sufficiency and its quality would lead this Court to conclude beyond reasonable doubt that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, even after making full allowances for the advantages enjoyed by the jury.  There was a significant possibility that an innocent person had been convicted.  The guilty verdicts should be set aside as unreasonable and verdicts of acquittal entered.

Conclusion

[20] The appellant's counsel does not suggest the primary judge's directions to the jury were in any way inadequate.  His Honour warned the jury that there was a delay of up to eight months in making the complaint about some counts and warned them that it would be dangerous to convict on the complainant's testimony alone unless, after scrutinising it with great care and considering all the circumstances relevant to its evaluation and paying heed to the warning, the jury were satisfied beyond reasonable doubt of its truth and accuracy.  His Honour also warned the jury that if they had a doubt about the complainant's evidence on one count or as to her evidence of uncharged acts, they should take that into account in considering her evidence on other counts.

[21] His Honour fairly summarised the prosecution and defence cases.  The prosecution case was that the offences were momentary and could have occurred as described by the complainant, notwithstanding the crowded household.  The defence case was that it was implausible that these offences could have occurred in this overcrowded household.  The jury could not discount the appellant's sworn denial.  The complainant told her aunt shortly before she made the complaint to police that nobody had touched her.  This was in stark contradiction to what she told V and the police.  The complaint only came to light in circumstances where the complainant was in trouble at school.

[22] The jury retired to consider its verdict at 4.53 pm.  At 5.57 pm they asked to see the complainant's evidence in respect of count 4.  The judge let them return to their homes for the evening.  The court resumed at 9.14 am the following day and the requested passages of the complainant's evidence including cross-examination were played to the jury.  The jury retired again to consider their verdicts at 10.43 am and returned with their verdicts at 11.14 am.

[23] The matters raised by the appellant were all issues at trial and were singularly within the jury's role to resolve.  The complainant's evidence, though brief, did not lack particularity.  The conduct she described was momentary and opportunistic and did not lend itself to lengthy explanations.  On her account, there were no eye-witnesses in this crowded household but that was because the appellant touched her when no-one was looking.  It is true that the complainant told D the appellant did not touch her only weeks before she complained to V and the police.  But that is unsurprising as D was the appellant's partner of almost 20 years.  Understandably, the vulnerable young complainant who had recently lost her mother to cancer, would have been reluctant to complain about the appellant, even when asked directly by D.  The complainant's uncertainty about matters in cross-examination at trial, approximately 16 months after the events, did not require the jury to reject her evidence as to the four alleged offices. She consistently maintained the appellant committed all four offences.  The jury were not obliged to accept the appellant's evidence.  The jury's request to hear the complainant's evidence concerning count 4 during their deliberations suggests that they conscientiously went about their onerous task in accordance with the judge's careful and fair directions.  If the jury rejected the appellant's evidence and were satisfied of the complainant's evidence that the appellant committed the four offences beyond reasonable doubt, they could, as the judge properly instructed them, convict the appellant on each count.  After reviewing the whole of the evidence, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

[24] It follows that I would dismiss the appeal against conviction.

[25] NORTH J:  When interviewed by police on 10 August 2011 the complainant said, concerning the episode the subject of count two, “I felt the cold [hand] go up my belly and up my leg”.  When asked whereabouts did she feel his hands on her body she said “near my legs and my belly”.[13]

[26] When cross examined at the trial,[14] the complainant gave the following evidence[15]:

“And that [the appellant], he came over to you in the lounge room and you felt a cold hand on you? - - Yes.

And that he touched you? - - Yeah.

Where did he touch you, […]? - - on the belly.

On the belly.  And what did you do after that? - - Pushed his hand away.

Was that on top of your clothing or underneath? - - On top.

So that wasn’t on your skin at all? - - No.

And then you got off the mattress, didn’t you? - - Yes.

And then did you go into the hallway? - - Yes.

And then did anything happen after that? - - No.

So he didn’t touch you again on that same day? - - No.

On that day in the lounge room, just to be clear, he touched you on the belly on the top of the clothing?  Is that what you say happened, […]? - - Yes.”

[27] On the latter occasion the complainant did not speak of any touching of her leg or legs.  One might also wonder how a cold hand might be felt by touching “on top of” her clothing.

[28] The trial was not long and the evidence in short compass.  So in the course of his careful directions his Honour was not required to make extensive reference to the evidence.  But his Honour did draw to the jury’s attention this aspect of the evidence when he commented that it might be more difficult to conclude that a touching of the stomach through the clothing was indecent.[16]

[29] In address counsel for the appellant reminded the jury of the discrepancy between accounts concerning count two.  She urged those discrepancies upon the jury as a ground for having a doubt concerning the reliability of the complainant’s evidence.[17]  Upon this issue and the others agitated on behalf of the appellant, as the President has noted, it was singularly within the province of the jury to resolve.

[30] After a review of the whole of the evidence, for the reasons given by the President, I agree the appeal should be dismissed.

[31] HENRY J:  I have read the reasons of McMurdo P.  I agree with those reasons and the order proposed.

Footnotes

[1] Ex 3 (AB 107).

[2] Transcript of s 93A interview, 2.35.

[3] Transcript of s 93A interview, 5.178.

[4] Transcript of s 93A interview, 12.534.

[5] Transcript of s 93A interview, 17.756.

[6] Transcript of s 93A interview, 17.742.

[7] Transcript of s 93A interview, 21.933.

[8] Transcript of s 93A interview, 28.1257.

[9] Transcript of s 93A interview, 28.1262.

[10] Transcript of s 93A interview, 28.1262.

[11] T 1-23.3-4 (AB 29).

[12] T 1-25.7-8 (AB 55).

[13] T of s 93A interview, 11.462-475.

[14] On 24 September 2012.

[15] T 1-18 L 31—1-19 L 6 (AB24-25).

[16] T1-19 L 13 (AB88)

[17] T1-43 L 35—1-44 L 2 (Sup AB5-6).

Close

Editorial Notes

  • Published Case Name:

    R v MBW

  • Shortened Case Name:

    R v MBW

  • MNC:

    [2013] QCA 123

  • Court:

    QCA

  • Judge(s):

    McMurdo P, North J, Henry J

  • Date:

    24 May 2013

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC417/12 (No citation)27 Nov 2012MBW was convicted of four counts of indecent treatment of a child under 16 under his care.
Appeal Determined (QCA)[2013] QCA 12324 May 2013Appeal against conviction dismissed: McMurdo P, North J, Henry J.

Appeal Status

Appeal Determined (QCA)

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.