R v Atu

[2002] QCA 476

SUPREME COURT OF QUEENSLAND

CITATION:

R v Atu [2002] QCA 476

PARTIES:

R
v
ATU, Thomas Joseph
(appellant)

FILE NO/S:

CA No 137 of 2002
DC No 109 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

8 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2002

JUDGES:

McPherson JA, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Conviction quashed
3. Verdict and judgment of acquittal entered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of indecent dealing with child under 16 years – was alleged appellant removed or took down the complainant’s shorts and underpants – whether verdict unsafe and unsatisfactory – whether a reasonable jury could have relied on the complainant’s evidence that she did not remove her own clothing – whether the jury could have been properly satisfied that there was no reasonable hypothesis open on the evidence other than that it was the appellant who had interfered with the complainant’s clothing

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISDIRECTION AND NON-DIRECTION – whether learned trial judge erred in rejecting a submission of no case to answer made at the conclusion of the crown evidence– whether evidence was capable of supporting the conviction  

Criminal Code Qld, s 210(6)

M v The Queen (1994) 181 CLR 487, considered

COUNSEL:

K McGuinness for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid (Queensland) for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I agree with the reasons of Holmes J.  In view of the unsatisfactory state of evidence, I consider that this is not a case in which a retrial should be ordered.  The appeal will be allowed, the verdict and conviction set aside, and a verdict and judgment of acquittal entered.

1. CULLINANE J:  I have read the reasons of Holmes J in this matter.  I agree that the evidence could not exclude beyond a reasonable doubt the hypothesis that the complainant had pulled down or removed her own clothing.  This being so, the appeal should be allowed, the conviction quashed and a verdict of acquittal entered. 

1. HOLMES J:  The appellant was convicted of one count of indecent dealing with a child under the age of 16 years after a trial in the Townsville District Court in April 2002.  It was alleged against him that while the complainant was asleep he removed or took down her shorts and underpants and his own jeans.  He appealed the conviction on two grounds: that the learned trial judge had erred in ruling that there was a case to answer, because the evidence was not capable of supporting a conviction; and that the verdict was unsafe and unsatisfactory.

1. The appellant was a man of 44 years of age, of Aboriginal and Islander descent.  The complainant was a 14 year old resident of Palm Island.  On 19 May 2000 she had spent the day drinking a mix of beer, cask wine and rum and coke at her family’s house.  That evening there was something of a party at the house, involving, according to one witness, about 30 people, who were coming and going at various times.  At some time after 10.00 pm the complainant, who on her own description was “bombed up”, “really drunk”, decided to go to bed.  She went into a front room of the house where her sister Clarine, and Clarine’s partner, Paul McLaughlin, were already asleep on a mattress on the floor.  The room was dark, and there was no electric light because the fitting had been smashed.   She got onto a double bed which was not usually occupied.  A photograph of the bed taken some hours later shows that it is no more than a wire frame with, on top of it, numerous items of clothing, presumably to provide some covering for the frame.  There is a mixture of fabrics and colours which might make it difficult to distinguish one piece of apparel amongst the others.

1. The complainant said that when she went to bed she was wearing a red shirt, white shorts and a pair of male underpants, black in colour.  Her shorts, she said, were up: “they were tighten (sic) when I went to sleep”.  She was woken when her sister, Mary, accompanied by two other girls, Krystle Baira and Theresa Friday, came into the room and lit a cigarette lighter.

1. Each of those three young women gave evidence about what they saw, as did Paul McLaughlin.  There is a good deal of conflict in and between the witness accounts.  The complainant said that when she woke the button on her shorts was undone and the zip pulled down.  Her underpants and shorts were both around her knees.  There was blood on her shorts because she was menstruating at the time.  However, in her earlier statement to police she said that she awoke to find her sister Mary and her two companions and Clarine and Paul McLaughlin looking at her.  She was lying on her side facing them.  Getting up, she saw that her shorts and underpants were inside out on the floor under the bed.  Under cross-examination she said she did not know whether her clothes were around her knees or on the floor.  She was unable to say what part of the bed she was lying on.  She agreed that she had told the police that before she went to bed she went to the toilet and removed her tampon.  She could not find another so she went to bed without one.  She had not felt anyone pulling her clothes down.  Throughout her evidence, the complainant made no mention of anyone else on the bed.

1. The complainant’s sister Mary, like the complainant, was 14 years old at the time She had had four or five cups of a mixture of bourbon and coke.  She entered the room to see Paul McLaughlin and Clarine sleeping on the floor and the complainant and the appellant on the bed.  Apart from the light of her cigarette lighter, there was some light coming through the doorway, but the outside light that might have shone through the window was off.  The complainant was lying facing the appellant, between him and the wall.  Her  shorts had been taken off her body and were on the bed; but she did not know whether or not her sister still had underpants on.  Her shirt covered her body.  The appellant’s jeans, the witness said, were half way down to his thighs, but she gave no response to a question as to whether any part of his body was exposed.  She had asked, “Who is there”?  and the appellant had answered, “Just me and my woman”.  She told him to get up and said, “That’s my sister”.  The appellant kept repeating the statement “This is me and my woman”, but then asked her to turn the lighter off.  When she did so he pulled his jeans up and walked out of the room.

1. Krystle Baira, also a teenager, said that she had not drunk any alcohol that night.  She had gone to the home of the complainant’s family at a time which must have been between 10.00 and 11.00 pm.  She said that after arrival she had been standing in the hallway for a while when she heard the complainant crying.  She spoke to Theresa Friday and Mary, and they entered the room.  Mary struck the cigarette lighter.  She was able to see the complainant and the appellant lying on their sides on the bed, the complainant closest to the wall.  The appellant’s jeans were down at his ankles.  She could not see what the complainant was wearing.  However, somewhat surprisingly, she was cross-examined to elicit a concession that she had told police that she had seen the complainant with her shorts off; in her statement she had said that both shorts and pants were on the floor under the bed.  She then confirmed in her evidence that the shorts had indeed been off.  She also had told the police that the appellant’s jeans were down to his knees, rather than his ankles, and she agreed in cross-examination that that was in fact the case.  Ms Baira also said that the appellant had made the statement “This is my woman” and, on being told to go, had left the room.

1. Theresa Friday, who had been about 15 at the time, had not been drinking alcohol.  She had seen the appellant on the night in question in the lounge room of the complainant’s house.  She had gone into the back room of the house and seen the complainant asleep on a mattress on the floor, wearing shorts and a bra top but no shirt.  Ms Friday returned to the lounge room later when Krystle Baira had come back from the bakery.  She went with her and Mary into the front room of the house.  When Mary struck the lighter she saw the appellant and the complainant on the bed, with the appellant closest to the wall, lying facing the complainant.  The complainant was wearing a black bra and her shorts were down near her knees.  She did not see whether she had any underwear.  The appellant’s jeans were pulled down half way. With, it must be said, some prompting from the prosecutor she said that she was able to see his “cheeks, arse”; although, on her account, his buttocks must have been to the wall.  Similarly she said that she could see the complainant’s backside.

1. Paul McLaughlin said that he had been woken by Mary slapping him.  He sat up and looked around to see the appellant on top of the complainant, who was sleeping on her back.  As he started to get up the appellant put his jeans on and ran out of the room.  The complainant was still asleep, with only a shirt on.  He slapped her to wake her and told her to put her clothes on.  She had nothing on her body from the waist down.  In cross-examination he agreed to having said in committal proceedings that the appellant was lying beside the complainant, facing her, with his jeans off.  Having accepted he said that, he then denied having said some minutes earlier that the appellant was on top of the complainant; rather, he maintained, he was getting off her.  He agreed that when he awoke he was disorientated and did not know for some while what was going on.

1. At the close of the Crown case his Honour the learned trial judge rejected a submission of no case to answer.  Counsel for defence had argued that the evidence was insufficient to establish that the appellant had removed the complainant’s clothing.  The appellant did not give evidence.

1. Mrs McGinness, for the appellant, argued that the prosecution evidence failed to establish that it was the appellant who removed or lowered the complainant’s clothing.  The complainant had been so intoxicated and her evidence was so unreliable that a reasonable jury could not have relied on her evidence that she did not remove her own clothing.  In her written submissions, Mrs McGinness also repeated an argument put below, that the removal of an item of clothing did not constitute an indecent dealing; but she did not press the point in oral submissions.  It can, in any event, be shortly disposed of.  The action of removing clothing, clearly enough, would involve at least an indirect touching so as to amount to an assault, and hence to a dealing, by virtue of s 210(6) of the Criminal Code.  In the circumstances, involving, as Mr Copley, for the respondent, pointed out, an allegation of conduct by a 44 year old male towards a 14 year old girl unknown to him, it was capable of being regarded as indecent; and it was entirely within the province of the jury to decide whether, according to community standards, it was.

1. Mr Copley argued that the jury was properly directed as to the approach to be taken to circumstantial evidence.  The circumstances available to support the inference that the appellant was responsible for the removal of the complainant’s clothes were that both were found lying on a bed facing each other; that both had their lower garments removed or lowered; and that when challenged the appellant replied, “This is my woman” or words to that effect.  In addition, according to Mr McLaughlin, the appellant had got up, put his trousers on and run quickly from the house.  It should be noted however, that the last piece of evidence was at odds with that of the complainant’s sister, who, on her account, had some difficulty in prevailing on the appellant to get up at all, and said that when he did, “he walked out pulling his jeans up”.

1. The real question is whether the verdict was unsafe or unsatisfactory; whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt, having proper regard to the consideration that the primary responsibility for determining guilt or innocence lies with the jury, which has had the benefit of having seen and heard the witnesses:  M v The Queen[1].

   [1](1994) 181 CLR 487 at 493.

1. That, I think, comes down here to a consideration of whether the jury could properly be satisfied that there was no reasonable hypothesis open on the evidence other than that it was the appellant who had interfered with the complainant’s clothing.  There was a good deal of divergence in the detail provided by the witnesses, explicable no doubt by the brevity of the episode, the darkness of the room and the alcohol which some of them had consumed.  But in the event those discrepancies are not of great moment.  The jury could, if it accepted certain of the witnesses, have been satisfied that the complainant’s shorts and underpants had been removed from her body. 

1. The appellant’s position in relation to the complainant, the state of his clothing and his statement “This is my woman” was enough to give rise to an inference that it was he who had interfered with her clothing.  The difficulty is the existence of a competing hypothesis: that the complainant, in her state of intoxication, had neglected either to put her lower garments back on or to pull them up after going to the toilet.  The evidence that she had used the toilet emerged in cross-examination:

“MR WALTERS:  Well, you got up and went to the toilet; is that right?--I don’t know.  I was drunk.

Well, do you remember telling the police this, “I kept drinking and dancing in the kitchen.  I was dancing by myself and kept to myself all night.  A long time later, my sister, Mary N, told me to go to bed.  She told me to go to sleep because I was too drunk.  I then went to the toilet.  I removed my med and couldn’t find another one, so I just went to bed.”  Is that what happened?  Miss N, is that what – what-----?--I suppose so.

You suppose so.  Well, you wouldn’t have even know whether you had done your pants up properly before you went to bed, would you?--I know how to do my shorts.

What, when you’re really drunk?-- Yeah.”

1. There are a number of points about that passage.  Firstly, the complainant’s account to the police did not give, in that part of the statement at least, any indication of the state of her garments on going from the toilet to bed.  There was no re-examination directed to showing that she had made the position clearer elsewhere in her statement.  Secondly, by the time of trial she seems to have been entirely without recall of the episode of going to the toilet, and her evidence in chief was given without reference to it.  Thirdly, and not surprisingly, given what she had to say about her state of intoxication, she did not when challenged assert that she had replaced and refastened her clothing after going to the toilet.  She put it no more strongly than the unspecific “I know how to do my shorts”. 

1. There could not be much assurance on that evidence that the complainant had her underpants and shorts on when she went to bed or that, if she did, they were pulled up and the latter fastened.  That gives rise, in my view, to the very real possibility, not excluded by other evidence, that the state of undress her sister and the others found her in when they entered the room was her state when she went to bed after having used the toilet.  If that were so, the appellant may well have come and lain down beside her, perhaps oblivious to her presence or perhaps with evil intent.  But whichever were the case it would not amount to the offence as particularised by the Crown; that is, that he removed the complainant’s clothing.

1. In sum, it seems to me that the circumstances relied on by the Crown in this case could not exclude as a reasonable hypothesis the prospect that it was the complainant who had removed her own clothing; and, that being the case, the jury could not have been satisfied beyond reasonable doubt of guilt.  I would allow the appeal, quash the conviction, and enter a verdict of acquittal.