R v Lough[2016] QCA 303

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with McMeekin J’s reasons for dismissing this appeal against conviction.

2. GOTTERSON JA:  I agree with the order proposed by McMeekin J and with the reasons given by his Honour.

3. McMEEKIN J:  On 20 April 2016, after a trial conducted before Martin QC DCJ and a jury, Alan Lance Lough was convicted of one count of maintaining an unlawful sexual relationship with a child under the age of 16 (count 1) and one count of unlawfully and indecently dealing with that same child when under the age of 16 (count 2).

4. Mr Lough now appeals against his conviction on the count of maintaining. He initially appealed the conviction on the second count but withdrew that appeal on the hearing of the appeal.  He also withdrew an application for leave to appeal his sentence.

5. The appellant contends that the verdict was against the weight of the evidence.

6. The prosecution case, which depended principally upon the complainant’s evidence, was that while the complainant was an apprentice employed by the appellant and aged 15 the appellant committed the following indecent acts on multiple occasions:

1. placing the complainant’s penis in his mouth;

2. masturbating the complainant with his hands to ejaculation;

3. slapping the complainant on the buttocks and grabbing at his crotch area.

7. The charge of maintaining in count 1 requires that the prosecution establish beyond reasonable doubt that the defendant maintained an “unlawful sexual relationship” as defined with the complainant: s 229B(1) of the Criminal Code (Qld) (“the Code”) (it was not in issue that the appellant was aware of the complainant’s age).  Such a relationship is defined as a relationship “that involves more than 1 unlawful sexual act over any period”: s 229B(2) of the Code.  An “unlawful sexual act” means “an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature” and such an offence is in turn defined to mean, for present purposes “an offence defined in section 210 (other than section 210(1)(e) or (f))”: 229B(10) of the Code. Section 210 so far as relevant provides:

210Indecent treatment of children under 16

1. Any person who—

1. unlawfully and indecently deals with a child under the age of 16 years;

…

is guilty of an indictable offence.

…

6. In this section—

deals with includes doing any act which, if done without consent, would constitute an assault as defined in this Code

8. Plainly the elements of the maintaining offence are made out if the complainant’s evidence be accepted.

The relevant principles

9. The ground of appeal raised is to be regarded as a contention pursuant to s 668E(1) of the Code that the jury’s verdict was “unreasonable, or cannot be supported having regard to the evidence”.

10. This Court is required to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. Special respect is, of course, to be given to the jury verdicts on contested factual issues. Unless explained by the advantages that a jury enjoys a reasonable doubt entertained by the Court should be given effect to.  If there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: see R v RAU;^[1] MFA v The Queen;^[2] R v SCH;^[3] SKA v The Queen;^[4] M v The Queen;^[5] R v Baden-Clay.^[6]

The appellant’s case on appeal

11. As developed on appeal the appellant’s case is that there was only evidence of one sexual act before the complainant’s 16th birthday and that was the offence involved in count 2. It occurred on board a boat, the MV Freeway. It was submitted that there was no other reliable evidence of any further sexual acts before his 16th birthday. It was submitted that the complainant’s evidence was so confused and contradictory that the verdict was unsafe.

12. The appellant accepts that there was a sexual relationship between him and the complainant but contends that the relationship only existed after the complainant turned 16 years of age. The appellant gave evidence at trial to that effect.

13. The appellant’s argument is that there was insufficient evidence to show habituality in the sense discussed in R v SCE^[7] where the President spoke of the factual finding relevant to an offence of maintaining (as it pertained to that case):

“…Although only three discrete acts over less than 18 months, they demonstrated sufficient continuity to allow the drawing of an inference of a developing and continuous relationship so that it was a jury question whether the prosecution established the element of habituality beyond reasonable doubt….”

The complainant’s evidence

14. The complainant was employed by the appellant’s company. His employment commenced when he was still at school.  The school based apprenticeship commenced on 23 August 2010.  His fifteenth birthday occurred two days before.  His apprenticeship continued after he left school in November 2010 and until he was aged 18.

15. At the commencement of the apprenticeship the appellant lived on the MV Freeway. It was an agreed fact that the appellant acquired the registration of a second vessel, the Pipe Dream, on 5 August 2011. The complainant turned 16 on 21 August 2011. His evidence was that no sexual offences occurred on the MV Freeway after the Pipe Dream was acquired. On his account sexual acts occurred on the Pipe Dream but he thought that he was probably 16 years old at the time.

16. The complainant said that he visited the vessel the MV Freeway for the first time about four or five months after commencing his apprenticeship and he thought before Christmas 2010. Nothing of a sexual nature occurred on that occasion. The complainant was equivocal as to whether the first sexual offence occurred before or after the break for the Christmas holidays.

17. The complainant’s evidence in chief was that on “four or five or more” occasions, the appellant placed the complainant’s penis in his mouth and masturbated the complainant with his hands to ejaculation. These acts occurred on the MV Freeway. The complainant gave a detailed account of the first such occasion. He said that it occurred when he had attended the vessel ostensibly for the purpose of getting help with his TAFE work. He said that he was supplied with more than four rum and cokes and that he felt “very clouded”. This event was the subject of count 2.

18. The complainant’s evidence of the incidents at work included one specific occasion of masturbation and oral sex. No specific date was given for this offence. The complainant further alleged that when he was at the workplace the appellant would slap him on the buttocks and grab at his crotch area.  He said that these acts at the workplace occurred through the whole of his apprenticeship and commenced when he was aged 15 and continued until he was 18.  They occurred “20, 30 or 40” times.^[8]

19. The complainant gave evidence of sexual acts occurring at an oyster lease on North Stradbroke Island and on the “Pipe Dream”. In relation to these acts his evidence as to his age was either equivocal (at age 15 or 16 on North Stradbroke) or that he was aged 16 (on the Pipe Dream).

20. The complainant related that he had been to the appellant’s oyster lease on North Stradbroke Island on about 20 occasions. They stayed together overnight. The appellant would often walk about naked. The complainant was unable to say when these events occurred. He did assert that one sexual offence occurred. In evidence in chief the complainant said the incident occurred when he was “15 or 16”^[9] but in cross-examination he disagreed when it was put to him that he was 16 by this time.^[10]

21. There was uncontested evidence that the appellant gave the complainant a bike for his 16th birthday at a cost of $600.

22. The complainant said that the sexual acts lessened in frequency after he obtained his drivers’ licence. It was not in contest that any sexual acts between the complainant and the appellant ceased once the complainant took up with a girlfriend in January 2012.

The appellant’s evidence

23. The appellant accepted that the complainant stayed over on the MV Freeway when he was 15.  He accepted that he could have taken things to work for him when he was 15.  He accepted that he purchased dinners for him when he was 15.  He accepted that he had taken him shopping at Christmas in 2010 or in early 2011 when he was just 15 and that he “could’ve” bought him things including clothes, because he, the complainant, was strapped for cash and as a reward for doing well at work.  The clothing included underpants.  He sent a text message referring to the complainant as “Cheeky Smiley” when he was 15.

24. The appellant said that the first sexual act between the complainant and him occurred on the oyster lease in late 2011. He said that he knew that the act occurred then as he “had just bought the Pipe Dream”. Subsequent to that he said that there were three occasions on which he masturbated the complainant at the workplace. He said that there were three occasions when sexual acts occurred on the Freeway and one occasion on the Pipe Dream. All these events occurred after the complainant’s 16th birthday. The appellant denied the conduct at the workplace such as pinching the complainant on the bottom or slapping him.

Other evidence

25. There was evidence from the complainant’s father that the complainant started staying away at night from early 2011, that he recalled the complainant receiving gifts before and after his 16th birthday, and that he obtained his drivers’ licence a few months after his 16th birthday.

The claimed inconsistencies

26. Counsel for the appellant submitted that the evidence of the complainant was vague as to details and particularly that he gave an inconsistent account of what occurred onboard the vessel the Freeway.

27. Counsel’s principal submission was that the latter inconsistency emerged in cross examination. In response to one question the complainant responded “Other than the time he sexually assaulted me on that boat.”^[11]  Counsel argued that this answer showed that the complainant alleged that there was only the one occasion on which sexual activity took place on board the vessel “Freeway” and it was submitted that was the subject of count 2 which he had described in detail.  It was submitted, accurately enough, that proof of one isolated sexual offence was not enough to establish count 1.  It was submitted that the alleged offending conduct at the workplace stood or fell with the evidence of what occurred on the vessel.

28. In my view, when taken in context, the answer does not necessarily have the connotation now placed on it. Before turning to that context it is notable that counsel did not attempt to tie the complainant to an account that there was only one occasion on which sexual acts occurred on the “Freeway” of the type he had described. As mentioned he had given unequivocal evidence in chief that there had been four or five such acts when he was aged 15. He said that he had visited the vessel 10 or so times.

29. The answer that counsel now relies on was given after a series of questions that all related, or could well have been understood by the complainant to relate, to the complainant sleeping over on the boat. The distinction is between events occurring aboard the Freeway, and events that occurred when he slept over on the Freeway. The complainant had made it plain in his evidence in chief that he had visited the boat on a number of occasions but slept over only once or twice. His account was that the appellant would give him alcohol, make him drunk and then commit the offences on him. The questioning then was:

“MR CLUTTERBUCK: Okay. I would like to take you to the boat, Freeway, and you mentioned some sleeping quarters that you stayed in?---Mmm.

Was it one or more than one night?---Pardon?

Was it one or more than one night?---I believe there was more than one night.

And you stayed over there on the vessel, Freeway, how many times before you turned 16 years of age?---At least once or twice.”^[12]

…

“Yes. Now, we’re talking that period of time between – before you were 16 years of age. What would you then do after you – after he gave you that alcohol? You’d go to bed then, wouldn’t you?--- Other than the time he sexually assaulted me on that boat.

All right. Well, I’ll be coming to that, but – in due course, but I suggest to you that there was no sexual assault at all to you – on you before you were 16 years of age?---Yes, there was.

Well, you only – which of the two times then did it occur, the first or the second?---I believe there was – once I went down to the boat before it happened.

I don’t follow. You went down to the boat before what happened?---He sexually assaulted me.

See, any – I’m suggesting to you that you and Alan, Alan Lough, after you were 16 years of age and when you could drive with a learner’s permit, you became very, very friendly sexually together, didn’t you?---No. That’s when it lessened.

I suggest to you that what actually happened was that, on the very first occasion, that you had – any form of molestation between you and Alan was at the Miora fishing hut after you’d turned 16 years of age?---No.”^[13]

30. While the two passages I have quoted are not in direct sequence – there was questioning occupying the intervening three pages of transcript - the context is at least confusing given the opening question that I have quoted.  The witness may have been speaking of every event that occurred on the vessel or only those that occurred when he slept over.

31. That evidence elicited in cross examination can be contrasted with the complainant’s evidence in chief. In that evidence the complainant described in detail the first occasion on which sexual acts occurred (and on that occasion he slept over on the vessel) – the subject of count 2 - and then he was questioned as follows:

“… is this the only time anything of that nature happened on Freeway?---No, it isn’t.

You mentioned – sorry, I’ll rephrase that. How many times did things of this nature, that is masturbating and sucking your penis, how many times did that happen on Freeway?---Probably four or five, or maybe more. I don’t - - -

Are you able to say specifically when each of those other times occurred?---No. My memory’s not that good.

Are you able to say other things, like how you got to the boat on any of those occasions?---A lot of the time I’d go riding my bike at the skate park before I went, and then ride down there, the majority of the time.

You mentioned four or five or maybe more times this happened on Freeway. How old were you when these occasions took place?---I would have been fifteen.

For all of them?---I believe so.”^[14]

32. The complainant at no time said that he slept over on each occasion that sexual offences occurred. So in the context of his evidence the statement that there was one occasion when a sexual offence occurred when he did sleep over, as he said in his evidence in chief in relation to count 2, does not of necessity throw doubt on his credibility.

33. However, it is true, as counsel for the appellant submitted, that there were inconsistencies in the complainant’s account.

34. One inconsistency concerned his age at the time of the event on North Stradbroke Island that I have recounted.

35. The most glaring potential inconsistency was in his re-examination where the following exchange occurred:

“Okay. Well, moving on, then, to some questions about Freeway, okay? Now, you got asked a question how many times did you stay over when you were 15 and you said one to two times. Can you remember saying that?---Yes.

How many times did you go there when you were 15 and sexual things happened to you?---At least once or could be more. It’s all very cloudy in my head because I don’t want to remember it.

And so you spoke in your evidence in-chief about one occasion you remember the best. Do you remember that?---Yes.

How many other occasions where there when you were 15 on Freeway?---Maybe just one more.

…

MR HYNES: Now, is it the case that you were there on that boat a number of times throughout 2010 and 2011?---Yes.

Is that right?---Mhmm.

And you said you stayed over one to two times?---Yes.

Did you go over more than that, though?---Yes.

All right. How many times do you think you went to the boat when you were 15?---10 or so.”^[15]

36. The answer “maybe just one more” taken on its own hardly provides a basis for a finding that there were two or more unlawful sexual offences on board the “Freeway”. There remains the confusion as to whether the witness is relating the question to occasions when he slept over or to all occasions. But the answer should not be taken on its own. There remain several problems for the appellant’s argument.

Why I reject the appellant’s arguments

37. The first difficulty is that counsel did not confront the witness directly with what are now called discrepancies. Where the witness does not have the opportunity of clearly appreciating the point that is now sought to be made I am reluctant to draw too much from the answer relied on.

38. The second difficulty for the appellant is that the prosecution case included the events at the workplace (slapping the complainant on the buttocks and grabbing at his crotch area).  There is no question but that the conduct described satisfied the definition of “unlawful sexual act” and on the complainant’s account occurred when he was 15.  If accepted they established the element of habituality.

39. I cannot see why it is asserted that those allegations necessarily stood or fell with the events onboard the “Freeway”. It is true that in response to a leading question the complainant accepted that the events at the workplace occurred at the same time as “acts” (plural) on the “Freeway” but he appeared certain in his response that these acts occurred for the whole of his apprenticeship and including when he was aged 15. In relation to the appellant slapping him on the buttocks and grabbing at his crotch area he said:

“That was happening throughout the whole of the apprenticeship. The whole time I was there he was doing things like that, so---

So would it happen, those acts, at the same time as the things were happening on Freeway?---- Yeah.

When you were 15?---Yes.”^[16]

40. A third problem for the appellant’s argument is that the complainant seemed more certain when relating offences to events, as might be expected. The complainant’s account was that once the appellant acquired the “Pipe Dream” no more offences occurred on the “Freeway”. The Pipe Dream was acquired on 5 August 2011 and so before the complainant’s 16th birthday. The jury may well have accepted that while the complainant gave confused evidence on the subject there was a repeating acceptance from both sides of the case of more than one event on the Freeway and they may well have accepted that the complainant was more reliable in his recollections of the timing of these offences (which he said on more than one occasion he had attempted to put out of his mind) when he could relate the timing of the sexual offences to an event such as the acquisition of the Pipe Dream.

41. Allied with that point is that that there was some support for the prosecution case for the time period in which the sexual offences occurred. It was common ground that any sexual acts between the complainant and the appellant ceased once the complainant took up with a girlfriend in January 2012. On the appellant’s case then all sexual acts (it now being conceded save the first such offence) had to have occurred in an approximate four month period between the 16th birthday on 21 August 2011 and January 2012.  The complainant’s evidence had encompassed 10 visits to the Freeway, 20 visits to the island, and sexual acts on the “Freeway”, the workplace, the island and the “Pipe Dream”.  Acknowledging that the complainant said that some of the offences occurred, or may have occurred, in that four month period, the jury were quite entitled to think that the events that the complainant related would be hard pressed occurring in so short a time period as four months or so.

42. The fourth problem is that these differing accounts – assuming that they do differ materially – must be assessed in the context of the whole of the evidence. Even if the connotation that counsel now wishes to place on the evidence was more compelling I would not be prepared to accept that there was any ground for interfering with the jury’s view of the case. The aspects of the evidence that tell strongly against the appellant are these.

43. First, count 2 is now not in contest. So the starting point is that an indecent act occurred on board the MV Freeway when the complainant was aged 15. It is quite evident that the complainant related that offence as occurring early on in the relationship – he was not certain at one point whether it was before or after the Christmas of 2010. The better view of his evidence may be that he meant to indicate the event occurred after the Christmas break. Whether before or after the break it was plainly at an early stage. Having accepted that account the jury were quite entitled to think that it was unlikely that the appellant would have exhibited no further sexual interest in the complainant until he turned 16 about eight months later, particularly in the context of the various gifts, particularly the $600 bike for his 16th birthday, the complainant frequenting his vessel, his many attendances at the oyster lease, and his staying overnight on board the vessel.

44. Secondly, the other evidence in the case supported the prosecution case that a relationship existed before the complainant turned 16 that was hardly typical of an employer/employee relationship. I refer again to the gifts, the shopping for clothing, the multiple visits to the vessel, and the staying over on the vessel. To an extent these claims were supported by the father’s evidence. The jury were quite entitled to think that all this provided the context and support for the evidence that sexual offences took place when the complainant was aged 15.

45. Thirdly, there is the improbability of the appellant’s explanation for what had occurred. While he accepted that he had masturbated and fellated the complainant he claimed to have no sexual interest at all in the complainant and had acted in that way at the instigation of the complainant. The appellant was 39 years older than the complainant. I suspect the jury may have struggled with a claim that a 16 year old boy (on the appellant’s account) would require his 55 year old employer to fellate him and masturbate him. While a lie does not establish either the opposite contention or, in this case, the time at which events occurred, the jury were entitled to bring apparently false denials into account in assessing the veracity of the appellant’s denials of repeated sexual offences occurring before age 16.

Conclusion

46. In my view the prosecution case against the appellant was a strong one. There is no reason to have any doubt about the jury’s verdict. It was supported by the complainant’s evidence and much else besides. The jury had the task of assessing the credibility of the complainant. They believed him. They did so with the benefit of the learned trial judge’s comprehensive directions that are not now complained of.

47. In Baden-Clay after again reiterating the primacy of the jury in criminal trials the Court concluded that “the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”^[17]  Upon reviewing the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the count in question.

48. I would dismiss the appeal.