R v M'Bie[2017] QCA 40

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Douglas J and with the reasons given by his Honour.
2. PHILIPPIDES JA:  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Douglas J.
3. DOUGLAS J:  The appellant was charged with three counts of sexual assault on the one complainant and, on 7 April 2016, was found guilty of two counts relating to events that occurred on 26 January 2015 and not guilty of the third count alleged to have occurred on an unknown date between 1 March 2015 and 30 April 2015.
4. He has appealed against the convictions on the grounds that the guilty verdicts were unsafe, unsatisfactory and inconsistent with the evidence.  Those grounds are, no doubt, meant to be equivalent to the statutory language of s 688E of the Criminal Code that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.
5. He also argued that the jury should have been directed that the prosecution was required to establish beyond reasonable doubt that s 23 of the Criminal Code did not apply to excuse him from criminal responsibility at least in respect of count 1.  That was argued on the basis of evidence that he had said to the complainant that “very often he was sleepwalking”.^[1]  Further he submitted that the jury should have been directed that the prosecution had failed to disprove consent on the part of the complainant.
6. He also sought to lead further evidence on the appeal consisting of documents some of which may have been referred to in the trial but not tendered, including text messages and letters from the complainant’s school about the complainant.  He was represented at the trial and his counsel did not tender those documents.
7. He was sentenced to nine months’ imprisonment suspended after he served a period of four months.  The operational period of the sentence was two years.  His period in actual custody expired before his appeal was heard.  He made no specific oral or written submissions about his appeal against sentence apart from the written submission that it was manifestly excessive.
8. He represented himself on the appeal by video link from France.  He is a French citizen.

Amendment of the charges

9. The appellant was charged originally with one count of sexual assault on 26 January 2015 and a count of attempted rape on the same date.  The third count was the further count of sexual assault on an unknown date between 1 March 2015 and 30 April 2015.  He was arraigned on that indictment and pleaded not guilty in the presence of the jury panel and was later placed in the charge of the jury.
10. After having conferred with the complainant the prosecutor sought leave to amend count 2 to a charge of sexual assault.  That course was not opposed by defence counsel.  The learned trial judge treated it as an amendment of count 2 to a different charge.  The appellant was then arraigned on count 2 as amended in the presence of the jury and pleaded not guilty.  His Honour then informed the jury of the details of the three counts as amended and that the appellant had pleaded not guilty to them in accordance with s 51 of the Jury Act 1995.
11. I have mentioned these events because the appellant regarded the change in the charge as a reason why the complainant’s evidence should be disbelieved.  In truth, as I shall explain later, the complainant said it was a misunderstanding by police of what had been said to them by the complainant - something lost in translation.

The evidence

12. The complainant was a 16 year old French youth by the time of the trial and 15 when the relevant offences occurred.  He arrived in Australia in January 2015 to attend a school at the Gold Coast while living in a unit with the appellant, who was a university student there, and had been his scout master in France.  In France the complainant had stayed at the appellant’s apartment on weekends with his mother’s approval and the appellant had tried to help him with his behaviour.  He had not been happy at his school in France.  He had visited the Gold Coast in 2014, staying with another family, but had been on a road trip with the appellant for several days on that occasion.
13. He was to have his own bedroom in the unit at the Gold Coast in 2015 and slept there on the night of his arrival.  On the second night, 26 January 2015, the appellant asked him to sleep in the appellant’s bedroom to be sure that he would wake up at the right time to be ready to go to school the next day.  The complainant slept in the same bed as the appellant dressed in boxer shorts, a t-shirt and the bottom of a pair of long-legged pyjamas.  The appellant was wearing only boxer shorts.
14. After going to sleep the complainant woke in the middle of the night with his pyjama pants and boxer shorts down near his knees.  They had been up when he went to sleep.  He could feel the appellant’s body on him with his penis on the complainant’s bottom.  He did not know whether it felt as if it was erect and said it was at the same level as his coccyx or tail bone.  It was there for two or three seconds.  The complainant moved and said the appellant went back to a position on his back and feigned sleep, including pretending to snore.  The complainant had been sleeping on his front and believed the appellant had been on top of him.  He tried to go back to sleep “and to think what was going on, because I was not really sure of what happened”.^[2]  He had, by then, pulled up his boxers and pyjama bottoms.
15. About 30 minutes later he said the appellant pulled down his boxer shorts and pyjamas.  He then felt the appellant’s erect penis on his bottom and said the appellant’s left arm or hand could not stop shaking.  He believed the appellant’s weight was on his left hand and his right hand was on his, the appellant’s, penis in an attempt to penetrate him “between his bottom” but he could not see that.^[3]  He felt contact with the appellant’s penis for about five seconds.  After that the complainant left the room.
16. Those two episodes constituted the first and second counts on the indictment where guilty verdicts were entered by the jury.
17. Fifteen minutes later the appellant came to see the complainant in his bedroom and asked why he was not in the appellant’s bedroom.  The complainant’s evidence was:^[4]

“WITNESS:  So 15 minutes later he came to see me in my bedroom and he asked me why I was not in his bedroom.  So I told him – I responded that you know perfectly why, so don’t ask.  So he pretended – so he acted like he didn’t knew (sic).  So he asked me to explain.  So I told him – I explained to him what just happened.  So he told me not to worry about that, that he – very often he was sleepwalking.”

18. The complainant did go back to the appellant’s bedroom but the accused did not try anything else that night.
19. After that the complainant slept in his own bedroom until a friend of the appellant came to live in the house and the appellant told him that he, the complainant, had to go back to sleeping in the appellant’s bed with him.  The appellant returned to France briefly and came back to Australia at the end of March, just before Easter 2015.  The night he returned, he woke the complainant by trying to pull his pyjamas and boxer shorts to his knees.  His pyjama pants were pulled “half the way off” but the boxer shorts were still on.^[5]  He did not feel the appellant’s hand come into contact with his body then.^[6]  The complainant got up and locked himself in the toilet.
20. That conduct was said to constitute count 3 where the jury entered a not guilty verdict to the charge of sexual – unlawful and indecent – assault.
21. On no occasion did the complainant consent to the appellant touching him or taking his clothes off.^[7]
22. Subsequently the complainant’s younger brother came to live with them.  There was some conflict between the two boys.  The complainant also sent emails to his mother complaining about the appellant.  About two weeks later his mother came to Australia, on 14 June 2015, and took him to see a doctor the next day.  Both sons left the unit then with her.  The appellant told her that both boys had behaved very badly when they stayed with him.
23. The complainant told the doctor on 15 June 2015, in the presence of his mother, what happened on the second night after he arrived (relating to counts 1 and 2) and on the “second time”,^[8] in context referring to the events related to count 3.  He said that was the first time he had told anyone about the events.  Later that same day, 15 June 2015, he provided a statement to police.
24. In cross-examination the complainant admitted to having had behavioural problems at schools in France.  That caused him problems in being admitted to a school at the Gold Coast.  He agreed that the appellant had signed a document with him by which the appellant agreed to make sure that the complainant studied and behaved.  He also agreed that the appellant put in place a pretty strict routine concerning how things would work in the unit where they lived.  When the appellant returned to France his friend and a woman helped look after the complainant.
25. On the first two occasions, relating to the events of 26 January 2015, he also agreed in cross-examination that he did not try to ring his mother.  He thought he could have dreamt what had happened the first time but said that by the second occasion on that night he was “very well awake”.^[9]  By then he had concluded that the first time was not a dream.^[10]  He waited during the second time “to be sure of what he’s doing, so he could be punished for what he wants to do”.^[11]  He pushed the appellant away as soon as he “could feel his penis on my bum”.^[12]
26. Defence counsel suggested to the complainant that he had told the police that the appellant had his right hand on his penis, and was trying to push it into his bottom. The complainant responded by saying:^[13] “What I wanted … to tell the police was that … that’s what I thought he was going to do … but that’s not what he was doing.”
27. He agreed that he was taller than the appellant, capable of standing up for himself and that he had been insolent to teachers in the past.  He could have contacted his mother earlier than he did, while the appellant was away in France.  He explained his failure to tell her earlier by saying he did not know how to tell her or if he should tell her.^[14]  He agreed with the suggestion that relations between him and the appellant worsened when his younger brother arrived in Australia in mid-May 2015.  He also agreed that he had lied to his mother on 1 June 2015 about the appellant hitting his brother.  Relations between him and the appellant continued to deteriorate after then.  He agreed he had been in trouble at school for misbehaviour before in France and that he had lied when it suited him in the past.  He denied the suggestion that the allegations he made about the complainant were lies.
28. His mother’s evidence was that he told the doctor that the appellant tried to touch him on two occasions.^[15]  Her husband, her sons’ father, had died some years before, after which they had seen a psychologist.  The appellant had agreed to supervise her son’s performance as a student.  She had contact with her son by Skype and text messages.  He was not alone when she spoke to him by Skype.  The appellant complained to her about the behaviour of the complainant and his brother on about 1 June 2015.
29. The doctor’s evidence was that the complainant said that the appellant lay down next to him with his pants down.  The complainant had been woken up by the appellant from his sleep and then noticed that his own pants were also down.  He “denied any advances”.  The appellant tried once or twice more to touch him but was denied and the complainant said he then left the room quite shaken.^[16]  The doctor had taken notes, either at the time or shortly after, and said that the complainant spoke to him in a free-flowing manner in English.  The police were contacted from his rooms.

The summing-up

30. It was apparent from the learned trial judge’s summing-up that the contest between the parties was principally about the complainant’s honesty and reliability.  The defence case was that the jury could not accept him as an honest and reliable witness.
31. His Honour’s directions to the jury were conventional.  He read the evidence relevant to each count to the jury, including the evidence of his preliminary complaints to the doctor and the police officer.  He drew attention to some minor inconsistencies between the versions given to each of those witnesses and the mother’s recollection of what the complainant told the doctor.  He pointed out that there was no evidence corroborating the complainant’s version of events, told the jury that they could convict on uncorroborated evidence but should scrutinise it carefully and be satisfied beyond reasonable doubt as to its honesty and reliability.
32. He reminded the jury of the complainant’s admission to lying in the past when it suited him.  He also drew attention to his continued presence in the house and the defendant’s bed and his failure to complain to his mother until the visit to the doctor on 15 June 2015.  He pointed out that those and other matters should lead the jury to scrutinise the complainant’s evidence carefully before acting on it.
33. No re-directions were sought at the time.  There were four questions asked by the jury during their deliberations which were answered appropriately.  So the only argument related to the summing-up is that raised on the appeal, whether there should have been a s 23 direction because of the reference the complainant said the appellant made to “sleep-walking” in respect of count 1 and whether the jury had been directed appropriately in respect of the issue of consent.  His Honour gave the jury the conventional directions about the role of consent in a charge of assault.

The issues on the appeal

34. The arguments by the appellant were, in effect, that the jury’s verdicts on counts 1 and 2 were unreasonable or could not be supported having regard to the evidence; that further evidence should be introduced on the appeal; that the jury should have been directed that a defence under s 23 of the Criminal Code had to be disproved at least in respect of count 1 and that the jury had not been directed appropriately in respect of the issue of consent to the assaults.  The sentence was also said to be manifestly excessive.

Were the jury’s verdicts unreasonable or not supportable having regard to the evidence?

Submissions

35. The appellant argued that the evidence established that he had been looking after the complainant appropriately until the complainant’s brother arrived from France when both boys were insolent or disrespectful to him.  In making that argument he referred in part to evidence that was not led at the trial, although there was some evidence obtained through cross-examination by his counsel at the trial that supported that conclusion.
36. He submitted that there were three different versions of the assault of which the complainant said he was the victim.  He also argued that the versions given to the doctor in the mother’s presence were different from what was said to the police shortly afterwards.  He also argued that the version given at the trial was different again.  He drew attention to some of the differences between the versions.  These were matters that were raised on his behalf at the trial and, in truth, the differences were not particularly significant.
37. He argued, for example, in respect of count 2 that the complainant changed his story from one where the appellant was allegedly trying to penetrate the complainant to an admission that that was not true.  The complainant explained that in cross-examination, by saying that what he wanted to tell police was that he thought the appellant was going to push his penis into his bottom but was not actually doing it then.^[17]  That was consistent with the prosecutor’s decision to change the allegation in count 2 from one of attempted rape to a count of unlawful and indecent assault, something which the prosecutor told the court he wished to do before the evidence commenced as a result of a conversation he had had with the complainant.^[18]  As I have said earlier, this was consistent with police having misunderstood what was said to them by someone whose native language was not English rather than an admission by the complainant that his previous statement to police was untrue.
38. These were issues dealt with by the learned trial judge in his summing up when he reminded the jury of the evidence about count 2.  It was an issue that clearly worried the appellant but one that was quintessentially a matter for the jury to decide when assessing the complainant’s credibility.
39. He also argued that the complainant’s evidence that he waited and let the appellant touch him with his penis because he wanted to make sure of what he was doing so that he could be punished for what he wanted to do amounted to consent, especially when coupled with his continued occupation of the same bed after the first encounter.  He pointed to the delay in any complaint by the complainant to his mother until 15 June 2015 from the events of January 2015.  He argued that that was consistent with the complainant, in effect, making a false complaint against him in June because of the deterioration of their relationship with him about that time.
40. He pointed to the failure of the complainant to tell the doctor that he felt the appellant’s penis on him, although he did tell the doctor about some sexual abuse when he first came to Australia.  Nor did the doctor record the complainant saying that he hid in the toilet after count 2’s events.  He also argued that there was no indication that the doctor had recorded any allegations about what was count 3.  He argued that the preliminary complaint evidence should have been treated as inadmissible rather than having been left to the jury to determine.  It is classically, however, a jury question for them to hear such evidence and then weigh its effect.  Whether the doctor made a complete note of what he was told by the complainant was not explored in evidence in any detail.  It would not be surprising if such a note did not contain all the detail provided by the complainant at the time.
41. There was a further complaint about evidence said to have been led from the doctor that he examined the complainant’s younger brother for injuries and that there were “marks on his face”.  In fact no such evidence was led orally before the jury.  What was heard by the jury was a question asked by the defendant’s counsel of the complainant whether he was present when the doctor examined the complainant’s younger brother to look for injuries.^[19]
42. The respondent argued on the appeal that it may be inferred that this was a tactical decision by defence counsel as the injuries to the younger brother, who inflicted them and what the complainant said about them were used by defence counsel to attack the complainant’s credit.^[20]  The respondent argued, therefore, that the appellant was bound by these tactical decisions and also pointed out that the learned trial judge directed the jury in response to one of their questions, which was whether the appellant was charged with assault of the younger brother, that it was completely irrelevant to their deliberations and that there was no evidence of it.  His Honour told them to ignore it completely.  We should assume that the jury did what his Honour directed.
43. The appellant also complained of the failure of police to speak to the friend who lived at his place or to contact the complainant’s school.  There was no suggestion elsewhere in the evidence that the friend or people at the school could have thrown any light on the allegations sustaining counts 1 and 2.
44. The respondent’s submissions were that on the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt.  The respondent also submitted that the verdicts were not inconsistent.  The facts in respect of count 3 were quite different from those in respect of counts 1 and 2, were said to have occurred on a later date and, quite arguably, were based on evidence which did not clearly support an allegation of indecency.  The evidence was that the appellant tried to pull the complainant’s pyjamas and boxer shorts to his knees with the result that the pyjama pants were pulled halfway off but the boxer shorts were still on.  Nor did the complainant feel the appellant’s hand come into contact with his body then.
45. As the prosecutor said to the learned trial judge when discussing the possible directions to be given, the jury might have been more concerned about the element of indecency in relation to count 3 compared to the other two counts given the momentary and low level nature of it.^[21]  As counsel for the respondent pointed out on the appeal, also, both prosecution and defence had combined in requesting the trial judge not to put an alternative verdict, such as common assault, in respect of any of the counts.  In my view there was no inconsistency in the verdicts sufficient to justify any interference by this Court.
46. In respect of the sufficiency of the evidence to sustain the jury’s guilty verdicts, the respondent argued that the only issue for the jury from the way in which the case had been conducted, was whether the allegations of the complainant were true and whether his account should be accepted beyond reasonable doubt.  That was the basis on which the case was conducted and the summing up was delivered.  His Honour also expressly warned the jury that they could only accept the evidence of the complainant after scrutinising it with great care.  The respondent argued that the complainant’s evidence was not contradicted, not implausible or unlikely and that the jury enjoyed the considerable advantage of seeing and hearing the witnesses.  That enabled them to resolve all of the aspects of the complainant’s evidence which the appellant criticised.  The respondent also submitted, it seems to me correctly, that, because of the nature of the allegations, neither further forensic or police investigation could have added to the body of relevant admissible evidence available to the jury.

Consideration

47. The primacy of the jury’s verdict in cases of this nature is described by the High Court in MFA v The Queen^[22] as follows:

“Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as ‘unsafe or unsatisfactory’, or ‘unjust or unsafe’, or ‘dangerous or unsafe to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.’”

48. Other statements of principle were also gathered in SKA v The Queen in these terms:^[23]

“The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

…

In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

49. Similarly, in R v Baden-Clay,^[24] the court said:

“[65]It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, 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’.”

50. The sufficiency of the evidence to establish these two charges is not in doubt.  The complainant’s evidence of the appellant’s placing his penis against his bottom, having pulled down his pyjamas and boxer shorts, in respect of count 1 and of touching his bare bottom with his erect penis in respect of count 2 is enough to satisfy a jury, if they accepted the evidence, that the elements of the offences had been committed.
51. There were some aspects of the quality of the prosecution evidence that were concerning.  The delay between the events of 26 January 2015 and the first complaint made in the presence of the doctor and the complainant’s mother on 15 June 2015 is notable.  It may well be explicable because the complainant, a boy of 15, felt embarrassed about what had occurred and did not want to talk about it where his remaining in Australia may have been affected by telling his mother what had happened.  To some extent, that is speculation on my part as the issue why he did not tell his mother earlier was not examined extensively in the trial.  He was cross-examined about the opportunities he had to contact her and said in re-examination he did not know how to tell her or if he should.  The evidence suggests that he had ample opportunities to contact her at least by text message and when the appellant went back to France.
52. He also went back to sleeping in the appellant’s bed with him after these events in January 2015.  That may well be thought to have been curious behaviour having regard to his complaints about the defendant’s conduct.  He did, however, supply some explanation for doing that: the appellant’s friend had come to stay at the apartment and was using the bedroom he had been using and the appellant told him he had to go back to the appellant’s bedroom.^[25]
53. The appellant was, by May and June 2015, in a state of conflict with the complainant apparently stemming from his younger brother’s arrival in Australia.  The complainant admitted to lying to his mother about the appellant having assaulted his brother and to having lied on other occasions.
54. These issues were addressed by the learned trial judge when summing-up.  They were typically issues which the jury were required to assess in reaching a view about the adequacy and reliability of the evidence.  The jurors also had the benefit of having heard the complainant’s evidence and had the chance to assess his credit as a witness in circumstances where his evidence about the incriminating events complained of remained unshaken by the cross-examination.
55. We have not shared that advantage which is a critical one in a case of this nature.  I have concluded, therefore that this is one of those cases where the jury’s advantage in seeing and hearing the evidence is capable of resolving these doubts about the quality of the prosecution evidence.

Further evidence

56. I have referred earlier to the documentary evidence that was sought to be tendered by the appellant on the appeal.  It consisted of a number of emails, letters and other documents generally related to the behavioural problems of the complainant and his brother, the reasons why the complainant came to Australia, violent behaviour of his younger brother in France and other such matters.
57. They do not qualify as fresh evidence as they were clearly available at the time of the trial.^[26]  Some of the matters in them were put in cross-examination by the appellant’s counsel at the trial in circumstances where there was little dispute about the fact that the complainant and his brother had behavioural problems.  Nor was there any dispute that there had been a falling-out between the complainant and the respondent, particularly since the arrival of the complainant’s younger brother.
58. None of the documents address the events the subject of the charges.  At best, they address some of the surrounding circumstances of the relationship between the complainant and the appellant.  Those issues were, however, canvassed in the cross-examination of the complainant.  In the circumstances, no case is made to justify their receipt into evidence on the appeal nor to justify any retrial.  There is no reason to conclude that, if the evidence had been led, that it might reasonably have led the jury to return a different verdict.

Should a defence under s 23 of the Criminal Code have been canvassed in the summing-up?

59. The next issue is whether any defence under s 23 of the Criminal Code should have been mentioned in the summing up.

Submissions

60. As the respondent argued, the defence case was conducted on the basis that the complainant’s entire account was a lie.  That is, that no physical contact between the complainant and the appellant of the kind alleged occurred.  The defence case did not seek to rely upon s 23 at the trial.
61. The complainant argued that, in respect of count 1 at least, the proposition that the events may have occurred when he was sleepwalking was one that might have warranted consideration by the jury.  He submitted that it was not necessarily inconsistent with the case based on a complete denial of the events.  He argued that it might have occurred independently of the exercise of his will if he were sleepwalking as the events might not have been remembered by him.

Discussion

62. As I have already pointed out, such a direction was not sought at the trial, the case having been run by the defence clearly on the basis that the events described by the complainant did not happen.  There may well have been tactical reasons to adopt such an approach and to avoid confusing the jury with the alternative version that, if the events did happen, then the appellant did not remember them, at least in respect of count 1.  In that context the observations in R v Lovet are appropriate:^[27]

“No redirection on this matter was sought by the appellant’s counsel and in this regard observations by members of the Court in R v Cambell (sic) [1933] St R Qd 123 are pertinent. Blair CJ, at pp 135-136, said:

‘Personally, I am of the opinion that when a Judge, after summing-up, asks counsel for the Crown and counsel for the defence whether they desire any other direction, and they say they do not, that concludes the matter. Of course if it were established that there was something in the summing-up which was manifestly against all sense of justice and law, this Court undoubtedly would consider it. With regard to the summing-up, the observations of the English Court of Criminal Appeal in R v Stoddart (1909) 2 Cr App R 217 at p 246 as to the practice should be borne in mind:- ‘Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more convincingly expressed, or whether other topics which might have been dealt with on other topics which might have been dealt with (sic) on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial, and which are only the result of criticism directed to discover some possible ground for argument.’

E A Douglas J, at pp 137-138, said:

‘I do not wish to add anything to what the Chief Justice has said, except this, that if a question of law arose, or a question which showed that some manifest error had arisen in the summing-up, then, notwithstanding that counsel had acquiesced directly or indirectly in the summing-up, it would be open to the Court of Criminal Appeal to review the whole matter. But in this case the only matters which are said to be challenged, and this is really an extra ground, are matters of fact on which the applicant alleges that his case was not put fully to the jury. Under such circumstances I think that, particularly where there has been a long trial with a lot of evidence, it is counsel's duty to point out such errors to the Judge at the time. When the Judge specifically asks the prisoner’s counsel whether he desires any further direction and counsel answers in the negative, I think that is sufficient, and that the matter should not be subsequently raised for the first time in a Court of Appeal; otherwise, we should be really offering the prisoner an opportunity of raising here what he should have raised at the trial.’

It must, of course, be observed that here the matter was raised by the Court in view of the fact that the appellant was unrepresented, but the fact remains that at the trial the appellant was represented by counsel who did not seek any other direction on the matter and who presumably, in the light of the conduct of the trial, was satisfied with the direction given. Whilst recognising that there are circumstances in which, notwithstanding that no redirection had been sought, justice requires that this Court should have regard to a misdirection or non-direction and act accordingly, as, for example, may well be the case if there was a failure to give a direction on some fundamental matter, this is not such a case, applying the observations made in R v Campbell (supra) which I have set out, I would not consider that the direction given on this matter should have the result that the appeal is allowed.”

63. There is no occasion, in my view, to order a retrial on the basis that such a direction under s 23 should have been made.  The conduct of the trial by the appellant’s counsel, if the jury had been asked to consider this alternative explanation, may well have been weakened by distracting the jury from the main defence, that these events did not happen.

Were the directions on consent appropriate?

64. Similar considerations apply to the complaint that the learned trial judge’s direction about consent was inadequate.  His Honour told the jury that lack of consent was one of the elements of the offence^[28] and also reminded them about the evidence of the complainant that he let the appellant “do it” in respect of count 2 “because I wanted to make sure that it was the same as the first time”.^[29]  It was a matter for the jury to determine whether the complainant was actually consenting to that conduct or simply doing what he said, in effect ascertaining whether the conduct was deliberate.  Where the defence was conducted on the basis that the event did not happen rather than that the complainant consented to it there was no need for any further direction than that provided.

Appeal against sentence

65. The sentence imposed by the learned sentencing judge was one of nine months’ imprisonment suspended after he served a period of four months.  The operational period of the sentence was two years.  In the absence of any submissions about the sentence apart from the assertion that it was manifestly excessive and, on an examination of the learned trial judge’s reasons for the sentence, it has not been shown to my satisfaction that the sentence should be disturbed.
66. It is supported by the decisions in R v Caulfield^[30] and R v Bradford^[31] to which his Honour referred in his sentencing remarks.  They were cases where, as here, there was a disparity in the ages of the appellant and the complainant and the appellant was in a position of trust in fulfilling a quasi-paternal role.  In Bradford the Court of Appeal substituted a sentence of 12 months’ imprisonment suspended after three months and one week for the original sentence of 12 months imprisonment with parole eligibility after five months.  In Caulfield the Court of Appeal did not disturb a sentence of six months’ imprisonment suspended after three months and one day.
67. The result in this case is consistent with those decisions and cannot be said to be manifestly excessive when compared with them and the other decisions referred to particularly in Bradford.

Conclusions

68. When one analyses the evidence as I have set it out earlier, it is clear that the jury were entitled to accept the complainant’s evidence as establishing the unlawful and indecent assaults charged in counts 1 and 2.  The inconsistencies relied upon by the appellant and the other observations about the complainant’s behaviour were not such as to gainsay the overall effect of the evidence.
69. Accordingly, no reason has been shown in this case to set aside the jury’s verdicts as unreasonable.  They were open to them on the evidence and it has not been shown that it is unreasonable to sustain them, having regard to the advantages enjoyed by the jury over this court in seeing and hearing the witnesses called at trial.
70. The other grounds argued are also without merit for the reasons expressed earlier.

Order

1. Accordingly, I would order that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.