R v Betts

[2001] QCA 446

[2001] QCA 446

COURT OF APPEAL

McMURDO P
DAVIES JA
AMBROSE J

CA No 166 of 2001

THE QUEEN

v.

B  Appellant

BRISBANE

..DATE 16/10/2001

JUDGMENT

THE PRESIDENT:  The appellant was convicted after a trial in the Maryborough District Court on 1 June this year of one count of maintaining a sexual relationship with a child with circumstances of aggravation, four counts of indecent treatment of a child, three counts of rape and two counts of sodomy.  He was sentenced to an effective term of 12 years' imprisonment.  He appeals only against his conviction, contending that the conviction is unsafe and unsatisfactory and contrary to law. 

The appellant's submission is that the complainant's evidence could not be accepted by the jury beyond reasonable doubt because of inconsistencies.   She failed to particularise in her evidence a number of counts which resulted in a nolle prosequi being entered on counts 2, 4, 6, 7, 8 and 9.  Her evidence was largely unsupported by any other independent evidence.  She made no fresh complaint and her evidence related to events which occurred 11 years ago when she was a young child.

The appellant had been the complainant's stepfather since she was six months old.  She was born on 3 December 1983 and was 17 at trial.  The complainant gave evidence supporting each count of which the appellant was convicted and also gave evidence of unparticularised acts of unlawful sexual conduct over a nine year period commencing when she was seven years old until she was 16 years old.

Although her evidence did not establish a number of uncharged acts, this is not unusual in these cases.  Those counts were withdrawn from the jury.  It seems defence counsel at trial attacked her credibility on this basis and the learned trial Judge also brought these matters to the jury's attention as relevant to her credibility.

The appellant emphasises the following as inconsistencies requiring the jury to have doubts about the complainant's evidence.  The complainant claimed that on one occasion she saw the appellant's tongue enter her vagina.  Dr McKeon who was called by the prosecution examined the appellant and noted that he had a condition commonly referred to as tongue tie which meant that he could only protrude his tongue a centimetre past the lower front teeth.

Dr McKeon also described the appellant as having an old white vertical scar on the left side of his scrotum towards the front which was four centimetres long.  The length of the scar could vary depending on whether or not the scrotum was relaxed when it would be longer or tethered or shrunk when it would be shorter.  The complainant's evidence on this point was that the appellant had a diagonal scar on his left testicle whitish in colour and about one to two centimetres long. 

The complainant did not make any timely complaint about the appellant's conduct, although she said in cross-examination that she told a friend but later told the friend that the complaint was not true.

Another witness, a different friend of the complainant, was called by the Crown for the defence to cross-examine.  Although she was a close friend of the complainant, the complainant did not tell her of the appellant's unlawful sexual conduct. 

The appellant did not give or call evidence but through his not guilty plea, cross-examination and defence counsel's address tested the complainant's account. 

The learned trial Judge in his summing-up referred to substantial portions of the cross-examination of the complainant, including her evidence as to the appellant's tongue in her vagina, Dr McKeon's evidence on this point, and the discrepancy between her description of the scar on the appellant's scrotum and that of Dr McKeon.

These issues and their effect on the complainant's credibility were plainly fully canvassed before the jury.  The Judge warned the jury that it would be dangerous to convict the appellant without some independent evidence tending to confirm or support her claims and gave them careful directions as to the dangers of convicting because of the delay since these offences were alleged to have occurred.

The Judge pointed out to the jury that the only independent evidence capable of corroborating the complainant was the evidence of Dr McKeon as to the existence of the scar on the appellant's scrotum but there was nevertheless the possibility of an explanation favourable to the appellant as to how the complainant might have known of the existence of that scar.

The Judge also pointed out to the jury the lack of fresh complaint, but as courts regularly note there can be many legitimate reasons why a complainant does not make an early complaint or withdraws a complaint, especially when she is seven years old when the conduct commences and the offender is her stepfather.

There were applications for redirections and it is not today suggested that any of the Judge's directions were inadequate.  None of the matters raised by the complainant, alone or collectively, compelled the jury to reject the complainant's evidence and conclude the charges had not been proved beyond reasonable doubt.   The jury was given the appropriate judicial cautions and must have considered all the matters raised by the appellant today before reaching their verdict.  If the jury accepted the complainant's evidence, as they plainly did, it was open to them to be satisfied beyond reasonable doubt that the appellant was guilty.

The verdict cannot be said to be unreasonable, M v. The Queen (1994) 181 CLR 487 at 493. I would dismiss the appeal against conviction.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

THE PRESIDENT:  The order is the appeal against conviction is dismissed.

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