R v BL

[2001] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:	R v BL [2001] QCA 28
PARTIES:	R v B
(appellant)
FILE NO/S:	CA No 284 of 2000
DC No 329 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING
COURT:	District Court at Maroochydore
DELIVERED ON:	Judgment delivered 8 February 2001
Reasons for judgment delivered 16 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2001
JUDGES:	de Jersey CJ, Williams JA and Mackenzie J
Judgment of the Court
ORDER:	Appeal against conviction allowed. Convictions on counts 1 and 2 quashed.
There will be no re-trial on those counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICTS – WHERE APPEAL ALLOWED – whether guilty verdicts on two counts unsafe
and unsatisfactory where inconsistent with acquittals on other counts, dependent on evidence contradicted by other unchallenged evidence, and where allegations basing one of the counts effectively denied by the complainant
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – OTHER OFFENCES - appellant convicted on
two counts of unlawfully permitting himself to be indecently dealt with by a child under 12
Evidence Act 1977 (Qld), s 93A
Jones v R (1997) 191 CLR 439, considered
COUNSEL:	AJ Glynn SC for the appellant
NV Weston for the respondent
SOLICITORS:	Dearden Lawyers (Brisbane) acting as Town Agents for Cartwright Richardson & Stringer (Noosa Heads) for the appellant Director of Public Prosecutions (Queensland) for the
respondent

1. THE COURT: The appellant was charged with six counts of sexual misconduct with an eight year old girl. Counts 1, 2 and 6 charged that he unlawfully permitted himself to be indecently dealt with, counts 4 and 5 indecent dealing, and count 3 unlawfully exposing the child to an indecent act committed by himself. He was convicted by the jury on counts 1 and 2 and acquitted on the rest. At the conclusion of the hearing of the appeal, we ordered that the appeal be allowed, that the convictions on counts 1 and 2 be quashed, and that there be no retrial on those counts. We then announced that our reasons for that judgment would be published subsequently. These are those reasons.

2. The ground of appeal was that the verdicts of guilty on counts 1 and 2 were unsafe and unsatisfactory, on the basis of inconsistency with the acquittals on the other counts, their dependence on the evidence of the complainant which was

   contradicted by other unchallenged evidence, and, as to count 2, the complainant’s

   effective denial in cross-examination of the allegations basing that count.

3. Count 1 concerned events at the appellant’s house on about 17 September 1999.

   The complainant’s evidence in-chief comprised a recorded statement admitted

   under s 93A of the Evidence Act, and she was cross-examined. She said that after

   other members of the appellant’s family had gone to bed, she and the appellant

   were watching a video, when the appellant turned it off and dimmed the lights. He exposed his penis to her and asked her to suck it, which she declined to do. This of course fell short of establishing a count of permitting indecent dealing with himself. The only other evidence of sexual misconduct on the part of the appellant on that occasion arose through cross-examination, when the complainant added to her account given through the s 93A statement:

   “Then he started feeling me and I tucked my hand behind my back

   so I didn’t have to feel him. But he get my hand and he made me
   feel him. I was too scared to do anything else.”

4. That evidence is somewhat ambiguous, and it might be arguable whether it established a charge of permitting himself to be indecently dealt with or whether an indecent dealing was a charge more appropriate on that evidence. In any case, the charge went to the jury in that form and the jury returned a verdict of guilty.

5. Count 2 related to events of the following morning, on or about 18 September 1999.

   In her statement, the complainant – still then at the appellant’s house as part of her overnight stay – said that the appellant rubbed her arm, against her will, against his

   penis, then within his pants. But in cross-examination, the complainant said that the only incident which occurred during this overnight stay was that involved in count 1. The jury nevertheless convicted the appellant on count 2. Counsel for the Crown conceded on the hearing of the appeal that this conviction could not be allowed to stand.

6. Count 3 arose from the complainant’s evidence, through her statement, that on

   about 17-18 September 1999, at the appellant’s house, while she was in N’s room,

   the appellant exposed himself to her. In cross-examination, the complainant said

   that nothing happened in N’s room. The jury understandably acquitted on this

   count.

7. Count 4 concerned an event in the complainant’s own bedroom on 18 September

   1999, after she returned home. The complainant said in her statement that while she was on her bed, the appellant pulled down her underwear and rubbed his finger near her private parts. The jury acquitted on this count.

8. Counts 5 and 6 related to events at the complainant’s home on 31 October 1999.

   The complainant said that the appellant touched her genitals (count 5, indecent dealing), and made her fondle his penis (count 6, permitting himself to be

   indecently dealt with). The complainant’s evidence was that these events occurred

   in her bedroom. But the complainant’s mother could at relevant times observe the

   entrance to that bedroom, and she said that the appellant did not enter it at any stage. The jury may well have relied on that evidence in acquitting the appellant on

   these counts. The complainant’s mother gave evidence of other inappropriate

behaviour on the part of the appellant which she observed outside, but that was not
the subject of the charges.

1. The complainant’s mother gave evidence of “fresh complaint” in relation to counts

5 and 6. The other witnesses in the case were the appellant and his wife. Their
evidence raised two particular matters of difficulty in relation to count 1.

1. The first concerns the complainant’s statement that she was wearing a nightie, with

   underpants. Both the appellant and his wife said that the complainant was wearing pyjamas, with long legs. The complainant's mother could not remember what the complainant was wearing, but confirmed that the complainant then owned a pair of such pyjamas. The events could not have occurred as claimed by the complainant if she was wearing pyjamas. Significantly for the resolution of this appeal, neither the appellant nor his wife was challenged in relation to their evidence on this point.

2. The second matter of difficulty concerns the complainant’s statement that when the

   appellant turned off the video, he dimmed the lights, as if preparing for some surreptitious activity. The problem is that the appellant and his wife gave evidence, again unchallenged, that there were no light dimmers in their house. On the other hand, the complainant and her mother agreed that there was a dimmer

   switch for lighting in the TV area at the complainant’s home.

3. Although there is reason not based particularly on the complainant’s honesty why

   the jury could have acquitted on counts 3,5 and 6 especially, while nevertheless convicting on counts 1 and 2, the jury must be taken to have considered the complainant at least an unreliable witness in relation to those counts, and in relation to count 4. Against that background, the inconsistencies in relation to clothing and lighting concerning count 1 assume particular significance. When one adds the circumstance that the only evidence which could, if accepted, go to establish count 1 first arose when the complainant was being cross-examined, there is a resultant aggregation of circumstances which renders the conviction on count 1 unsafe and unsatisfactory.

4. We set out these observations, apposite in this case, from Jones v R (1997) 191 CLR 439, 451:

   “In most cases a doubt experienced by an appellate court will be a

   doubt which a jury ought also to have experienced. It is only where

   a jury’s advantage in seeing and hearing the evidence is capable of

   resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is significant possibility that an innocent person has been convicted, then the court is bound to act and to set

   aside a verdict based upon that evidence.”

5. Because of the circumstances which led to our overturning the convictions, which

   included that reflection on the reliability of the complainant’s evidence, we reached

   the conclusion that it would have been inappropriate to order a retrial on count 1:

   there was no reasonable prospect of the appellant’s being safely convicted at any

   further trial on that charge.