R v Abbott
[2002] QDC 339
•28 August 2002
DISTRICT COURT OF QUEENSLAND
CITATION: R v Abbott [2002] QDC 339
PARTIES: THE QUEEN
and
GRAHAM STUART ABBOTT
FILE NO/S: 906 of 2000
DIVISION: Criminal Jurisdiction
PROCEEDING: Appeal
DELIVERED ON: 28 August 2002
DELIVERED AT: Southport
HEARING DATE: 28 June 2002
JUDGE: Alan Wilson SC DCJ
ORDER: Appeal allowed
Conviction quashedCATCHWORDS: CRIMINAL LAW – PROCEDURE – FAIR TRIAL – self-represented defendant – prosecution failing to prove guilt beyond reasonable doubt – defendant wrongly urged to give his own version of events, and wrongly induced into the belief it was necessary for him to give evidence – defendant’s evidence adduced through cross-examination by Magistrate – Magistrate failing to warn defendant against self-incrimination
Cases considered:
Yuill v Yuill (1945) 1 All ER 183 (CA)
Galea v Galea (1990) 19 NSWLR 263 (CA)
COUNSEL: Miss C Harrison for the Crown
Appellant self-representedSOLICITORS: Director of Public Prosecutions
The appellant, Mr Abbott, was tried before Ms Cornack, Magistrate at Southport on 16 August 2000 on two charges: the first, that on 31 March 2000 in a public place, namely the Griffith University library he behaved in an indecent manner; and the second, that on 11 April 2000 he again behaved in an indecent manner at the Griffith University cafeteria. Particulars of each offence were that he was masturbating in those public places. He was arrested on 10 May 2000 and kept in custody for two months.
The trial finished in one day. The only witness called for the prosecution was a Griffith University security officer, Suzanne Carlson. Mr Abbott represented himself. At the conclusion of the Crown case he gave evidence and was questioned by the Magistrate, and then the Crown Prosecutor. He was convicted on the first charge, and acquitted on the second. Sentencing was adjourned until 24 August. The Magistrate took into account the two months he had spent in custody (at the time of his arrest he was on probation) and sentenced him to one month’s imprisonment, backdated to the time his custody commenced.
He appealed on two grounds: first, that the conviction was contrary to the evidence and the weight of evidence; and, secondly, that the sentence was manifestly excessive. He represented himself on the appeal, heard 28 June 2002. Miss Harrison, instructed by the Director of Public Prosecutions (Queensland) appeared for the respondent.
Ms Carlson’s evidence-in-chief was to the effect that she received a complaint about the behaviour of a male person in the library at about 2 p.m. on 31 March 2000 and as she approached Mr Abbott where he was sitting at a library desk he:
“…had his hand in his groin area and then as we continued approaching directly to him his hand was still there. It wasn’t until we got closer that you could see that the top of his trousers were in fact, undone and a hand – and I can’t for the life of me think of which one was inside in the unbuttoned trousers…From my vision I couldn't directly be specific but his hand was inside his trousers and his hand was moving back and forth…He appeared to be masturbating.”[1]
[1] Transcript p 13, lines 19-31
Mr Abbott cross-examined Ms Carlson quite effectively and she admitted that, as she had approached him, she could not see his groin area and could not be certain his hand was in the region of his groin[2]. At that point the Magistrate intervened, and urged Mr Abbott to tell the witness where, in fact, his hand had been[3]. Further questioning of Ms Carlson, including questions from the Magistrate[4] also raised doubts whether Mr Abbott’s trousers were, in fact, undone. When the Magistrate first suggested to Mr Abbott that he tell the witness where his hand had, in fact, been he asked, “Is it relevant?”[5]. Shortly afterwards the Magistrate again urged Mr Abbott to “...tell Ms Carlson what was happening…”. He replied:
“…The only thing that matters today is – is what Mrs Carlson saw”.
Shortly afterwards he denied that when the security officer approached him his clothing was undone, or his hand was in his groin area. In that remark he admitted, however, that at an earlier time his hand had been “in the groin area”[6].
[2] T p 27
[3] T p 27, ll 50-60
[4] T pp 29-32
[5] T p 27, ll 50-56
[6] T p 30, ll 40-46
At the conclusion of Ms Carlson’s evidence the Magistrate, as her reasons show, was certainly in doubt whether the second charge had been proved and must, in light of the matters elicited by Mr Abbott in cross-examination of Ms Carlson, also have had some doubt about his guilt on the first offence.
During his cross-examination of Ms Carlson, the Magistrate interrupted frequently. At one point she said to the appellant, “…you’re just trying to make this a big mystery for me are you, Mr Abbott?”[7].
[7] T p 30, ll 8-9
Toward the end of Ms Carlson’s evidence the Magistrate told Mr Abbott that if she found he had a case to answer, he could give evidence today. He replied that he did not intend to take the stand[8]. At the end of the Crown case she told him of her finding that he had a case to answer and asked him if he wanted to give evidence that day[9]. This passage then appears:
[8] T p 35, ll 42-56
[9] T p 44, ll 40-41
“DEFENDANT: I’m going to have to, aren’t I? I – I…
BENCH: Well, you don’t have to but if you don’t have to I don’t get your version about what happened and although the security officer has agreed with some of the things that you’ve put to her in cross-examination, she hasn’t resiled from her main evidence. So if you want to tell me what happened those two days so I can see what you have to say, I may be left in doubt after you’ve given your evidence. It’s up to you. If you’d like some time to think about it…[10]”.
[10] T p 44, ll 43-53
The appellant then gave evidence. Eight pages of transcript follow of what was, in effect, questioning, in the form of cross-examination, of Mr Abbott by the Magistrate. He said he had been in the library when a young woman came and sat nearby and began behaving in a manner suggesting sexual interest in, or sexual advances towards him. The Magistrate urged him, as he related this event, to be “specific”[11]. In the course of this questioning he admitted his penis became erect, he made sure the young woman saw that he had an erection, and he touched himself through his clothing, but denied he masturbated. The Magistrate’s questioning became very direct. At p 50:
[11] T p 48, l 51
“(MAGISTRATE) I thought – now you just have to explain to me if I'm wrong, but I would have thought that you touched your erect penis to give yourself pleasure, and that’s what I thought masturbation would be. So if you’re saying you didn’t grab hold of your penis and go up and down the shaft of your penis…? – No, I didn't.
…to stimulate some sort of sexual thing…? – I didn't, no.
…I can accept that?- Yeah.
And I can accept you didn't – I can accept it if you tell me you didn't ejaculate?- Absolutely not.
And you didn't intend to take yourself to orgasm, but I would have thought if you were sitting there with an erection and you touched yourself…?- Yes.
…that that’s masturbation, because you're giving yourself a sense of sexual pleasure?- It was not – not completely for pleasure, it was more to draw attention.”
During his submissions on appeal Mr Abbott correctly identified the fact that the Magistrate does not appear to have made a specific finding as to whether or not she accepted Ms Carlson’s evidence about what she had seen. There are, however, remarks in the reasons, and in the subsequent sentencing remarks on 24 August, suggesting she did not but, rather, convicted Mr Abbott on the first offence on the basis of the evidence he himself had given. At p 3 the Magistrate said:
“As I said before, perception is very subjective and I must take into account that when the security officer went to the refectory she was going there concerned about Mr Abbott. She was going there concerned because she thought he was going to be masturbating.”
Later, at pp 4-5:
“He admitted he had fondled his erect penis. He said nothing about this other woman – this other girl until he came to Court today. When I carefully assess the evidence before me I find I am left in no doubt whatsoever that on 31 March 2000 Mr Abbott fondled his erect penis through his trousers at least, at the very least that is what he did in the library. On the balance of probabilities I think he went much further than that. I think he had his hand in his pants but he says he did not do that and when the security officer saw – she saw his – she saw the top of his pants undone and she saw what appeared to be his hand in his pants. He does not accept that but he admits he was fondling his penis through his trousers.”
At p 6:
“In relation to the first charge, I am left in no doubt that Mr Abbott engaged in indecent – engaged – behaved in an indecent manner even on his own version and I find him guilty of that offence.”
During her sentencing remarks the Magistrate did make a comment, while debating the conviction with Mr Abbott, suggesting she had accepted the security officer’s evidence that she had seen him with his hand on his groin[12] but in further reasons at the end of the sentence hearing she said:
[12] T p 6, ll 44-51
“In this case I have found Mr Abbott guilty of behaving in an indecent manner of (sic) 31 March 2000. This was as a result of evidence given by a university security officer who attended in an area of the library which is a quiet reading area and she found Mr Abbott there with a host of sex books open on his desk and she found him with his hand, she believes, tucked inside his trousers.
Mr Abbott denied that his hand was in his trousers or that he was touching his erect or unerect penis on the skin. He admits that his penis was erect and that he was touching his penis through his trousers.
As a result of Mr Abbott’s evidence, I found I was left in doubt about whether he had his hand inside his trousers but I was left in no doubt that he was fondling his own erect penis in the library that day.”
The second paragraph does not refer to the time at which the security officer saw Mr Abbott. Rather, it can only refer to events which occurred before the security officer’s arrival, about which he had told the Magistrate while answering her questions. The last paragraph strongly suggests his conviction was founded not upon his evidence about what had occurred around the time the security officer arrived, but what he had said, while giving evidence, happened earlier.
It is also clear his own evidence combined, it may reasonably be presumed, with Ms Carlson’s answers to his questions in cross-examination, had left the Magistrate in doubt that the security officer had in fact seen him masturbating or, even, with his hand on or near his groin.
In his submissions on appeal Mr Abbott advanced an argument on these terms. He said he had been convicted on what he said, “…voluntarily happened before Ms Carlson arrived”[13], and that his behaviour before her arrival was not indecent but involved some private, consensual byplay between him and the young woman who had behaved provocatively near him[14]. He then went on to argue that, in the absence of a complaint from a member of the public or from any person who saw him behaving indecently, he could not be convicted.
[13] Appeal T p 12, ll 19-22
[14] Appeal T pp 13, 14, 15
As Miss Harrison, counsel for the respondent points out, however, the particular offence, under s 7 of the Vagrants, Gaming and Other Offences Act 1931 applies to any person who in any public place behaves in an indecent manner is caught, and Ms Carlson’s evidence showed he was sitting in a public area in the library, with other persons in the vicinity, a matter about which the Magistrate made specific findings, at p 6 of her reasons:
“I find the man sitting in the library reading books about sex with an erection touching his erection at the library desk, even through his trousers, is engaging in indecent behaviour”.
That finding, however, as has been shown, must be based on the appellant’s own evidence about events before the security officer arrived. The question whether Mr Abbott had a fair trial, and whether the evidence which, then, convicted him, remains alive.
The conviction was improper, and ought to be set aside. It is clear from the Magistrate’s reasons she found his version of the events involving the young woman, before the security officer arrived, fantastic, and her views about his behaviour generally coloured her reasoning. At pp 4 and 5 of the reasons remarks of this kind appear:
“In fact, he thinks that is okay as a man who is 57 to go to the library and to get an erection when an 18-year-old sits alongside of him. An 18-year-old who is young enough to be his granddaughter and to touch his erect penis and to engage in that behaviour whilst he – she is sitting next to him and then he expects me to believe that she was the one who started it and she was a willing participant and he was just having a sexual game with her.
…
He said he did not do that to get an erect – to get an ejaculation or an organism. He admits that it was sexually pleasurable for him but he says he was doing that because the young woman was exposing her body in a sexual way to him. I do not accept that evidence of Mr Abbott. I think that is nonsense. I think Mr Abbott went to the library because he was sexually frustrated and he wanted to be surrounded by young girls. He told the security officer he was sexually frustrated.
He went and got books out about sex. So this just was not about something that was happening with that girl there. He went further than that, he was obviously there for his own sexual titillation or he would not have got those books. If it was just a matter of having some sort of obtuse sexual conversation with this girl he would have done that without going to get the books about sex and looking at them to increase his sexual desire.”
And, at p 6:
“In any event I find that a man in the library reading books about sex with an erection, touching his erection at the library desk even through his trousers is engaging in indecent behaviour. I find that that behaviour falls short of the standard expected by mature members of our society. I find it is unseemly. I find it is vulgar. I find it is offensive to proper standards of behaviour. I also find that it constitutes behaviour that is offensive to young students. It could be threatening to young students and it makes the library an unwelcoming place for them.”
Those remarks aside, the trial was conducted in a way which was unfair to the defendant in two senses. First, it was procedurally unfair because he was urged by the Magistrate during his cross-examination of the Crown witness to describe his own actions, in detail, when he could not be compelled to do so; and because he was told that, if he had a case to answer, it would be in his own interests to give evidence on his own behalf; and, because he was told he had a case to answer when, at the conclusion of the Crown case (as the Magistrate’s reasons reveal, albeit in a diffuse way) she must have held a reasonable doubt about guilt in light of the Crown witness’s admissions in cross-examination; and because, during his own evidence, he was pressed, vigorously, to give the version of events upon which he was ultimately convicted. Secondly, he was not given any warning that he could not be compelled to give evidence that might incriminate him and, rather, was at least encouraged, if not induced, to give that evidence during the Magistrate’s questioning of him.
The Magistrate’s intervention during the appellant’s cross-examination of the Crown witness and, in particular, her urging him to give his own version of events was a departure from the due and orderly process of trial such as to involve a miscarriage of justice, in the circumstances of this case[15]. Her statement to the effect that he had a case to answer was wrong because, as an analysis of the evidence and the various statements she made in her reasons and during sentence show, she did hold, or ought to have held, a reasonable doubt about the appellant’s guilt on the first charge. Her intervention during the appellant’s cross-examination of the Crown witness, and during his own evidence was excessive[16].
[15] Yuill v Yuill (1945) 1 All ER 183 (CA) per Lord Greene MR at 189-190
[16] Galea v Galea (1990) 19 NSWLR 263 (CA) per Kirby ACJ at 281-2
While s 15(1) of the Evidence Act (1977) denies, to a person charged with an offence who gives evidence, the right to refuse to answer a question which would tend to prove he committed the offence with which he is charged, the appellant was not warned that he was not obliged to give evidence about some other acts, outside those with which he was charged, which might show he had committed an identical offence, albeit in different particulars. The circumstances in which he was, in effect, persuaded to give evidence are themselves unfair. Even if it is the case that his election to give evidence was voluntary when he began his evidence he was told by the Magistrate that he must relate “exactly what happened”[17] and later that the Magistrate was “interested” (after he began to relate the incident in which he alleged a young woman sat near him and behaved in an “erotic manner”) and he would have to be “specific” and shouldn’t make “general comments”[18]. It must have been abundantly clear to the Magistrate that the appellant’s evidence (while both obviously fantastic, and troubling) was likely to be moving towards an admission of improper conduct on his part. He should never have been placed in that position and certainly, once he began to relate the event and the likelihood of self-incriminating evidence became, as it did, abundantly apparent he should have been warned. In the context of cross-examination by the Magistrate the obligation to give a warning was vivid.
[17] T pp 45-46, ll 59-60, 1-4
[18] T p 48
The incident Mr Abbott related involving the young woman in the library is, as I have said, quite fantastic and certainly troubling. Nevertheless, the circumstances of his conviction are more troubling, and it cannot be allowed to stand. The appeal is allowed
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