Mahoney v Webster

[1995] QCA 61

IN THE COURT OF APPEAL [1995] QCA 061

SUPREME COURT OF QUEENSLAND

C.A. No. 460 of 1994 C.A. No. 514 of 1994

Brisbane

[Mahoney v. Webster]

DESMOND PATRICK MAHONEY
v.
PETER NORMAN WEBSTER

(Applicant) Appellant

Fitzgerald P.
Davies J.A.

Pincus J.A.

Judgment delivered 15/03/1995

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

A PPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - INDECENT ASSAULT AND COMMON ASSAULT; recent complaint; whether complaint made promptly and spontaneously and supported by the reliability of complainant's testimony; whether misdirection by Magistrate in allowing prosecutor to speak to complainant during cross- examination or in respect of credibility of complainant; whether verdict unsafe and unsatisfactory.

R. v. Warner (C.A. No. 433 of 1994, judgment delivered

3 March 1995).

Counsel:	Mr. A. Rafter for the appellant (applicant). Mr. D. Bullock for the respondent.
Solicitors:	Legal Aid Office for the appellant (applicant).

Queensland Director of Public Prosecutions for the

respondent.

Hearing Date: 1 March 1995.

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 15th day of March 1995

The appellant was convicted in the Magistrates Court on 13 October 1994 on two charges of common assault and one of indecent assault. The offence the subject of the first of those charges was alleged to have occurred on 7 July 1993 and those the subject of the second and third charges on 8 July 1993. The appellant appeals against his conviction on each charge.

The appellant's sentence was a fine of $800.00. His conviction was recorded. He seeks to appeal against the recording of his conviction but not against the fine.

The complainant on each charge was a female casual cleaner at the Caloundra State High School. The appellant was her supervisor. She had commenced work at the school in April 1992.

Shortly after that the appellant, she said, came up behind her and put his hand up her skirt touching her bottom. She forcibly rejected his advance. She also gave evidence of an event, shortly before the occurrence of the events the subject of the charges, in which the appellant had exposed himself in front of her.

The complainant said that on Wednesday 7 July 1993 she was sweeping the kitchen floor in the Home Economics block at the school. She was squatting down to pick up some dirt when the appellant pinched her on the bottom saying: "What a nice bum you have". The complainant rejected his advance. This was the subject of the first charge.

On Thursday 8 July she was mopping the floor of the Home Economics block. She had her mop in a bucket when the appellant came up, grabbed her face and kissed her on the right cheek. This was the subject of a second charge. She immediately went to the laundry and as she went to pick up the bucket to empty it the appellant came in and pinched her on the bottom. She turned around and said: "Stop it" whereupon the appellant grabbed her left breast with his right hand. This was the conduct the subject of the third charge.

The complainant said that she saw the appellant the following day at work at about 8.30 a.m. She said that the appellant said to her: "Oh, your legs are a bit cold, I'll keep the upper half warm if you like". She replied: "No thank you".

After finishing her shift that morning she went home, did her housework and then telephoned a solicitor Linda Swanston and told her about the events which we have described. The complainant's evidence and Ms. Swanston's evidence of what was said was admitted by the learned Magistrate as evidence of recent complaint. Its admission was objected to and the failure of the learned Magistrate to reject it was the subject of the first ground of appeal. It was submitted for the appellant that the complaint made to the solicitor was not made at the first opportunity which reasonably offered itself after the offences on 7 and 8 July.

The rationale of the admissibility of evidence of recent complaint was discussed by this Court recently in R. v. Warner (C.A. No.433 of 1994, judgment delivered 3 March 1995) and R. v. King (C.A. No. 447 of 1994, judgment delivered 3 March 1995). It is unnecessary to repeat that discussion here. It is sufficient to say that, having regard to the circumstances to which we have referred, the complaint in the present case was made promptly and spontaneously and plainly supported the reliability of the complainant's testimony. It was therefore properly admitted.

The second ground of appeal asserted that the learned Magistrate had misdirected himself as to the effect of the prosecutor's speaking to the complainant during her cross- examination. That this occurred is not in doubt. The learned Magistrate correctly regarded this conduct as improper. Nevertheless defence counsel was given full opportunity to cross-examine in respect of it and, in the end, the learned Magistrate was entitled to conclude, as he did, that this did not cause him to doubt the reliability of the complainant's evidence. In our view there is no substance in this ground.

The third ground asserted that the learned Magistrate misdirected himself in assessing the credit of the complainant in relation to inconsistencies and improbabilities in her evidence. There were some inconsistencies but the learned Magistrate concluded that these were satisfactorily explained. Having had the opportunity to see and hear the complainant that was a view which was plainly open to him. The transcript of evidence does not give the impression of any inherent improbability in the complainant's evidence. In our view there is no substance in this ground either.

The final ground of appeal was that the verdict was unsafe and unsatisfactory. No particulars were given, no basis for it was suggested by counsel for the appellant and a perusal of the transcript does not indicate that any basis for it exists. This ground must also be rejected.

The appeal against conviction should be dismissed.
It was contended for the appellant, as we have already

mentioned, that the learned Magistrate should not have recorded a conviction. The appellant, who was approximately 42 years of age, had no prior criminal history. He had worked for 20 years in the armed services and had been honourably discharged. He is a married man with two children. It was submitted to this Court, although there is no indication that this was said below, that convictions would create serious obstacles to his obtaining government employment in the future.

No basis was put before this Court for the submission that the appellant's employment prospects with the government would be impeded by a fact of a conviction rather than because of the conduct which led to it. That conduct, in a work environment in which he was the complainant's supervisor was of a serious kind and might properly have resulted in his employer terminating his employment. But not recording a conviction would not save him from that fate. Nor do we think, having regard to the seriousness of the appellant's conduct, that the learned Magistrate erred in recording a conviction. He quite rightly referred to the prevalence of conduct of this kind in society, particularly in the workplace, and implicitly, to the need to deter it. Those considerations, as well as the seriousness of the conduct, justified the recording of a conviction.

The application for leave to appeal against sentence should therefore be refused.