Butler v Lloyd

[1997] QCA 302

IN THE COURT OF APPEAL	[1997] QCA 302
SUPREME COURT OF QUEENSLAND

Appeal No. 116 of 1997

Brisbane

[Butler v. Lloyd]

STUART ANDREW BUTLER

v.

EDWARD SVANTE LLOYD

Appellant

Fitzgerald P. Moynihan J. Dowsett J.

Judgment delivered 19 September 1997

Separate reasons for judgment of each member of the Court each concurring as to the order made.

APPEAL ALLOWED. CONVICTION SET ASIDE AND VERDICT OF ACQUITTAL

ENTERED.

CATCHWORDS:	CRIMINAL LAW - indecent assault - appeal against conviction - whether conviction unreasonable and unsupported by evidence - whether magistrate in error concluding that evidence constituted corroboration - whether conviction unsafe and unsatisfactory.
Counsel:	J. Farrell for the appellant. P. Rutledge for the Crown.
Solicitors:	Peter Moore & Co for the appellant. Queensland Director of Public Prosecutions for the Crown.
Hearing Date:	4 June 1997

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19 September 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of
Moynihan J.

Although the magistrate preferred the evidence of the complainant to that of the appellant, his reasons for doing so are not based merely on his assessments of them as witnesses whom he observed. He also relied on a number of considerations which suggest that he found support in the complainant’s version of events on the date of the alleged offence and in the immediately subsequent period. Those considerations are, at worst for the appellant, neutral, and certainly do not favour acceptance of the complainant’s testimony.

I agree with Moynihan J. that, in these circumstances, the appeal should be allowed and the conviction set aside. I also agree that a new trial would be inappropriate and a verdict of acquittal should be entered.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 19 September 1997

This is an appeal against a conviction for indecent assault following a trial before

a magistrate.

The grounds of appeal are–

1.         That the conviction was unreasonable or could not be supported by the evidence.

2.         That the magistrate was in error in concluding that there was evidence that could and did constitute corroboration.

3.         That the conviction was unsafe and unsatisfactory in all the circumstances.

The complainant was the appellant's mother-in-law, a woman in her early sixties. The appellant and the complainant's daughter Kim had been married for some 20 years prior to the alleged assault which was said to have taken place on 10 March 1996.

The assault was alleged to have occurred after the appellant had driven the complainant from his family residence where she had been minding her grandchildren for the appellant and her daughter. During the course of the journey, which the complainant suggested was more circuitous than was necessary, the complainant's evidence was that the appellant became agitated, waved his hands around and spoke of a wish to feel the complainant's breasts. There was no one else in the vehicle.

When the vehicle stopped outside the complainant's residence, the appellant and the complainant got out. The appellant came around to the passenger side, moved the seat of the two door vehicle forward to retrieve the complainant's bag and handed it to her. The complainant said that the appellant then grabbed her breast through her clothing - a summer "thick" dress, a petticoat and a "heavy sort of" bra. The complainant said that it was "not a hard grab". Her evidence was that having grabbed her breast the appellant said something to the effect that "It didn't hurt . . . I will get you". He then pointed out some birds in a tree and the complainant noticed that he was in a state of erection before she fled into the house.

The record indicates the complainant's account was not completely consistent or coherent. It is to that that the magistrate was presumably referring when stating in the reasons "I must take into consideration that she is a 61 year old woman and the events took place over a year ago."

The appellant denied that the route he took was circuitous, that he became agitated or that there was any conversation about the complainant's breasts. He denied the assault or that he had an erection. His account was that he gave the complainant her bag, she kissed him on the cheek, he pointed out the bird and then she went inside. Otherwise the appellant and the complainant's account did not materially differ.

The appellant described his relationship with his mother-in-law prior to the assault as being one of "tolerance", sometimes pleasant, other times less so. There was nothing in the evidence of animosity between the complainant and her daughter and son-in-law.

The appellant denied in cross-examination that in 1982 he had told the complainant he would like to feel her breasts at a time when they were travelling together as passengers in the back seat of a car. The complainant gave evidence to the effect that she had thought the appellant was trying to look at her through the bathroom window at his residence earlier on the 10th. Her daughter Kim (the appellant's wife) gave evidence that her mother raised this with her on the Thursday after the alleged assault had been committed, that the appellant was in his chair in the lounge while the complainant was in the bathroom and that you could not see through the bathroom window. The appellant denied that he had been trying to look.

The complainant did not say anything about the incident of 10 March until the evening of the 13th when she rang her sister in Sydney and, inferentially, complained to her. I say inferentially because although the sister was not called, the complainant's daughter Linda, with whom she lives, gave evidence which, after objection and argument, the magistrate ruled was admissible as constituting a recent complaint. The magistrate thought the delay was reasonable having regard to the relationship between the appellant and the complainant and the possible effect of a complaint on the appellant's daughter Kim.

The complainant's daughter Linda gave evidence that from her return home on the 10th to her disclosures on the afternoon of the 13th, the complainant appeared upset and agitated. Kim spoke with and saw the complainant during the same period, particularly on the 12th. The complainant gave Kim no sign that she was disturbed or agitated. A friend of Kim's was with her at the complainant's residence on the Tuesday night. She had previously known the complainant but did not detect anything untoward about her demeanour or conduct.

The complainant was examined by her doctor late on the 13th after she had spoken to her sister and her daughter Linda. The doctor found a "fresh" red area above the right nipple "consistent with an impression of some kind, like a finger indentation, and a small abrasion consistent with a finger mark." He could not discern the mark in a photograph which had been taken the next day. The magistrate was able to discern the mark in the photograph which had been pointed out by the complainant in the course of her evidence. It should be said that the mark is far from obvious to the uninstructed. The doctor said that he could not "put any parameters" on his description of the condition he saw on examination as "fresh". This evidence was criticised on the appellant's behalf, essentially on the basis that an injury inflicted on an assault of the kind described by the complainant on the evening of the 10th through the clothing she was wearing was unlikely to appear fresh on that of the 13th. This issue is not addressed in the reasons.

A complaint was made to police on 14 March. Later on that day Kim Lloyd went to see the complainant at the latter's request. Her mother showed her what was apparently a copy of the her statement to the police and told her that the appellant had grabbed her breast, exposed himself and threatened her. She exposed her breast to her daughter Kim who was shocked by her doing so, she did not notice any mark, perhaps for that reason. The magistrate referred to this incident saying in the reasons–

". . . the daughter Kim was also shown the breast of the complainant on the night she told the witness Kim Lloyd, of the complaint she made to police . . .".

The reference in the context in which it was made gives rise to the inference that it was relied on in support of accepting the complainant's evidence. How it did is not stated and it is difficult to see that it legitimately could. The appellant was not present, Kim saw no mark and the statement was completely self-serving. After mentioning the consideration of the complainant's age and the lapse of time since the alleged offence, the magistrate found that the complainant was an honest and truthful witness who could not be dissuaded from her story under "a very testing cross-examination" and rejected the appellant's evidence. The magistrate adverted to the fact that the complainant hadn't taken particular care to observe which hand the appellant had used to grab her breast or the route of her journey home. The complainant had told the police the right hand was used but her evidence was to the effect that the magistrate stated. The magistrate found the medical evidence suggested an injury consistent with the action attributed to the appellant and as I have said, discerned a mark on the photograph.

The magistrate did not refer to "recent complaint" in his reasons for disposing of the matter but in a ruling of the admissibility of that evidence he stated that the complaint could be proved not as to the truth of the matters stated but as to support the consistency of the plaintiff's conduct and credibility and to negative consent where that was an issue.

The magistrate made the following finding immediately before rejecting the

appellant's evidence–

"Nothing happened between the latter part of the Sunday when he took her home and the Thursday on the evidence before me that would have allowed the relationship between the parties to deteriorate, which it has done since that Thursday on the evidence before me, except the events surrounding the complaint to the police of the assault . . ".

That is no doubt so but the truth of the complainant's evidence is not the only inference open. A false complaint could no doubt lead to the same consequence.

The magistrate was conscious of the danger of convicting on uncorroborated evidence. Noting this, the magistrate expressed satisfaction that the complainant gave good evidence and presented as an honest and truthful witness. In circumstances in which the prosecution bore the onus of proving guilt and in which the evidence was finely balanced, it is not clear what, if any, evidence the magistrate relied on as corroborating the complainant's account.

There is no doubt that credibility was the crucial issue and the magistrate found adversely to the appellant.

In such circumstances a successful appeal has to be founded on showing the magistrate failed to use, or misused, the advantage of seeing the witness or erred on a ground not dependent on the advantages that a trial court had in matters of credibility; Brunskill & Anor v. Sovereign Marine and General Insurance Co Ltd & Ors1, Devries v. Australian National Railways Commission2.

As has been said this case was finely balanced and the inherent probabilities do not obviously favour one side rather than another. The magistrate's reasons show that more than the observations of the complainant and the appellant were relied on in founding a conviction. It was necessary to consider other evidence and this was done.

The magistrate plainly had reservations about the complainant's evidence hence his reference to her age and the time lapse. His judgment does not explicitly rely on corroboration, or for that matter, the recent complaint nor does it address the issues bearing on the appearance of the wound which had been relied on by the appellant. As has already been said, the incident of the complainant showing her breast her to daughter Kim and the deterioration in relations between the complainant and the appellant's family after the complaint had been made to police and drawn to Kim's attention are at best equivocal and do not support beyond reasonable doubt the conclusion for which they were apparently relied upon.

The considerations being those canvassed, the conviction cannot stand and should be set aside. In the circumstances it is not appropriate to order a retrial.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 19 September 1997

I have had the opportunity of reading the reasons prepared by the President and by Moynihan J. As those reasons demonstrate, the process by which the stipendiary magistrate reached his verdict was flawed in that he treated evidence from witnesses other than the complainant as supportive of her version when it was, in reality, neutral.

A further difficulty is the magistrate’s statement “I must take into consideration
that she is a 61 year old woman and that the events took place a year ago. She could

not be dissuaded under very testing cross examination ...” A 61 year old woman cannot

2 (1992-93) 177 C.L.R. 472

be treated as being in any special category of witness. The passage also suggests that because the complainant was not dissuaded from her story, her evidence ought to be accepted.

This was a case in which an allegation of quite bizarre misconduct was made against the appellant. It called for close scrutiny of the complainant’s evidence. It appears to me that no such scrutiny occurred. The conviction is therefore unsatisfactory in the administration of justice. In those circumstances, the appeal should be allowed and the conviction quashed. No good purpose would be served by a retrial. A verdict of Not Guilty should be entered.

1 (1985) 50 A.L.J.R. 842