R v Body

[2001] QCA 485

[2001] QCA 485

COURT OF APPEAL

DAVIES JA
MACKENZIE J
CHESTERMAN J

CA No 203 of 2001

THE QUEEN

v.

RONALD JOHN BODY  (Appellant)

BRISBANE

..DATE 06/11/2001

JUDGMENT

DAVIES JA:  The appellant was convicted after a trial in the District Court at Townsville on 26 July 2001 on one count of indecent treatment of a child under 12; one of exposing a child to an indecent video; and four further counts of indecent treatment of a child under 16.

The complainant, a girl, was born on 20 November 1985.  The incidents occurred between August and December 1997 when the complainant child was 11 or 12.

The circumstances giving rise to these charges were as follows.  Counts 1 and 2 were alleged to have occurred on the same occasion at the appellant's home.  The complainant said that she fell asleep in the lounge room, the appellant woke her up and told her to go into his room and lie on a mattress on the floor.  She did so and he lay beside her and started touching her on the breasts.  He then lifted her top up and began sucking on her breasts.  When the appellant left the room to answer the telephone he told the complainant to press "Play" on the remote control for a video player.  When she did so there was a pornographic movie showing on the television screen.

Count 3 was an occasion on which the complainant stayed at the appellant's home.  This was in December 1997.  She had gone to a barbecue with her family and the appellant's children had asked her to stay over.

After the barbecue the complainant's mother was dropped home by the appellant.  The complainant went along to collect her clothes.  When she got back in the car the appellant asked her to drive and to sit on his lap for that purpose.  As she did so he began touching her on the vagina underneath her clothing.

The remaining counts occurred also in December 1997 but subsequent to count 3.  The complainant went with the appellant and his family to a rock pool.  While at the pool the complainant said the appellant started "talking dirty" to her.  He went underwater and as he was coming up he put his hands under the complainant's shirt and grabbed her breasts and bit her on the vagina.  She pulled away, pulled his arm off and pushed him away.

She said she swam to the shallow end.  The appellant followed her and told her to touch him on the penis.  She said no but he then grabbed her hand and made her touch his penis.

There was evidence of fresh complaint from a woman called LM with respect to count 1 and from the complainant's mother with respect to the incident at the rock pool.

The appellant gave evidence so that the only evidence given apart from that of recent complaint was in effect of the complainant and the appellant. 

Nevertheless it is not quite correct to say, as Mr Rafter said to this Court, that it was a finely balanced case, although it was substantially the evidence of the complainant against that of the appellant.  There was, as I have said, evidence of recent complaint and the matter was not one of long standing as is sometimes the case in matters which we see regularly in this Court.

The appellant appealed originally on four grounds of which he pursues only one before this Court.  That is that the learned Judge erred in not discharging the jury after the learned Crown Prosecutor, in his closing address, told the jury amongst other things that, and it is quoted in the ground:

"Also from your own experience you may know that children are rarely convincing liars.  Certainly that is a fact which has been acknowledged by the Courts and in a case called Link in 1992 the learned Judge, Mr Justice Pincus..."

and then he was interrupted by an objection.  Accordingly it is only necessary to consider that ground.

I should have said when I was dealing with the witnesses that there were character evidence witnesses but in substance what I have said about them and there being in effect only two of major importance is correct.

Once counsel objected to the question being asked the jury were immediately discharged.  There was then an exchange between counsel for the defence and her Honour.  Counsel for the defence invited her Honour to consider discharging the jury in the circumstances mainly, as he put it, "because it's a pretty emotive point and one that can hardly fail to escape them".

I should say, however, that during the course of a subsequent exchange between counsel and her Honour it seems to have escaped all of them as to how much of the statement quoted in the ground of appeal was actually said.  Her Honour, for example, said that the Crown Prosecutor had said, "In your own experience children rarely make convincing liars.  Indeed the Courts have..." and her Honour went on to say, "and you were quickly to your feet."  So her Honour apparently thought, and neither counsel corrected her, that nothing further really was heard by them, and it may be inferred that it would have been unlikely to be heard by the jury.

Be that as it may, those words quoted in the ground were in fact said and may have been heard by the jury.

Counsel having invited her Honour to discharge the jury in the manner I have described, her Honour then said, "It would have to be a fairly strong point for me to discharge the jury at this point in the trial with a 15 year old complainant."

Mr Bassett, counsel for the defence, then said, "If your Honour please" and went on to another point.  It does not seem, in the circumstances, that the matter was pursued or that counsel for the defence actually made the submission and pursued the submission that the jury should be discharged.

The point may not matter a great deal because, in the end, the question which Mr Rafter for the appellant ably articulated in this Court is whether, in fact, in the event, there was a fair trial of the matter in the circumstances.

That question in the end depends as the High Court noted in Crofts v. The Queen (1996) 186 CLR 427 at 440, "upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact."

The stage at which this mishap, if that is what it can be called, occurred was in the final address of the Crown Prosecutor which was the final address in the trial.

It was, if it matters, conduct which was intentional on the part of the Crown Prosecutor, though it was not any deliberate attempt on his part to make submissions which he knew were inappropriate.

The important questions really are the seriousness of the occurrence in the context of the contested issues and the effectiveness of a judicial direction designed to overcome its apprehended impact.   

Turning to the second of those questions, her Honour discussed with counsel what form of direction should be given to the jury in the circumstances; the question really being one whether she should, in giving a direction, repeat the submission which was made by counsel for the prosecution.  It was agreed by both counsel that she should not do so and the form of her direction was also agreed on by counsel.

Her Honour explained to the jury that she had told them on previous occasions that they would be asked to leave when she had to make a ruling on a question of law.  She then explained to them that she had made a ruling on a question of law in their absence and she then told them that they should disregard any statement as to what Courts might have said in individual cases.  She said that was important because individual cases all turn on their own facts, and she then said, "But we will proceed now with the address."

Her Honour was, of course, referring to the second sentence in the statement contained in the ground of appeal.  That is, the sentence, "Certainly, that's a fact which has been acknowledged by the Courts and in a case called Link in 1992 the learned Judge, Mr Justice Pincus..." and as I mentioned earlier, at that point counsel was interrupted by the objection.

Mr Rafter, before this Court, quite properly, in my opinion, concedes that there was nothing objectionable in the first sentence which was, "Also from your own experience you may know that children are rarely convincing liars."  It may have been better if that statement had not been said but it seems to me that that alone would certainly not have entitled Mr Rafter to be here and even make the point arguable.

It is the second question which is arguable here, and it is that question which must be considered as to how serious that conduct was.  In other words, whether there is a serious possibility that it may have influenced the jury to return a verdict of guilty in this case.

I do not think that it could have done so.  I do not think there was a serious possibility that it could have influenced the jury.  The statement was immediately corrected by her Honour and, as Mr Heaton for the respondent before this Court has pointed out, the correction may well have had the effect of lessening the impact of the Crown Prosecutor's address to the jury, if it had any effect at all, but I do not think in the light of the correction which her Honour made, that the statement which the Crown Prosecutor had made would have had any noticeable effect or could have had any noticeable effect on the jury's verdict.

For those reasons, the sole ground of appeal in this case, in my opinion, must fail and I would dismiss the appeal.

MACKENZIE J:  I agree.

CHESTERMAN J:  I agree.

DAVIES JA:  The appeal is dismissed.

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