R v C

[1995] QCA 467

IN THE COURT OF APPEAL  [1995] QCA 467

SUPREME COURT OF QUEENSLAND

C.A. No. 317 of 1995

Brisbane

[R. v. C]

THE QUEEN

v.

C

Appellant

Macrossan C.J.

Davies J.A.

Lee J.

Judgment delivered 17/10/1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:                CRIMINAL LAW - INDECENT DEALING with a boy under age of 16 years; whether failure of trial judge to warn of danger of acting on uncorroborated evidence of child; whether verdicts were inconsistent.

Counsel:Ms. D. Richards for the appellant

Mr. J. Henry for the respondent

Solicitors:Legal Aid Office for the appellant

Queensland Director of Public Prosecutions

Hearing Date:  9 October 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 17th day of October 1995

The appellant was convicted on 29 July this year on two counts of indecent dealing with a boy under the age of 16 with a circumstance of aggravation.  Those offences, it was alleged, occurred on 20 March 1994.  He was acquitted on a further such count on the same night and also of a further such count in June 1994.  He appeals against his convictions on two grounds.  The first, which was added by leave, is that the learned trial Judge erred in not warning the jury of the danger of acting on the evidence of the complainant's sister, B, a child of 12, unless, having scrutinized her evidence with great care, they were satisfied as to its reliability.  The second ground is that the verdicts of guilty were inconsistent with the not guilty verdicts.

The complainant was 10 years old when he gave evidence at the trial, having been born on 2 February 1985. His evidence consisted of his unsworn testimony in court and video taped interviews tendered pursuant to s.93A of the Evidence Act.  His evidence, and that of his sister, was the main evidence against the appellant.

The appellant was the children's uncle.  The first three counts occurred, according to the complainant, on a night on which the appellant slept at the house of the children and their parents in a bed with the complainant.  The complainant identified the night as the night on which the film "Twins" was on television.  Independent evidence established that that film was on television on Sunday 20 March 1994.

The first count involved an allegation by the complainant that the appellant fondled his penis with his hand.  The second count involved an allegation that the appellant put the complainant's penis in his mouth.  On both occasions the complainant complained that it hurt and after the second incident went to the toilet where he remained until his sister came there some time later.  The third count, which appears to involve conduct said to have occurred a little later that night involved an allegation that the appellant had placed the complainant's hand on the appellant's penis.

The fourth count involved conduct alleged to have occurred in June 1994 at the appellant's mother's, the complainant's grandmother's house.  This was a touching by the appellant of the complainant's penis on the outside of his clothing.

The ground that the verdicts on the first two counts were inconsistent with the verdicts on the third and fourth counts was not vigorously pursued and may be easily disposed of.  The complainant, in one of the two tape recorded interviews with the police gave evidence of the facts with respect to counts one and two but not with respect to count three although, in evidence, he asserted that this occurred on the same night.  As to count four, although he gave evidence of this in the tape recorded interviews he did not recall it when he gave evidence at the trial.  Consequently it was reasonable for the jury to distinguish the complainant's evidence with respect to counts one and two, about which he gave evidence both in the tape recorded interviews and at trial, and counts three and four which were not as consistently supported by the complainant in his versions.  This ground must therefore be rejected.

In order to consider the other ground, which has more substance, it is necessary to say something of the course of the investigation and the trial.  When the police interviewed the appellant he admitted having seen the movie "Twins" on television at the complainant's house; and admitted to this conversation with the police during the course of his cross-examination at the trial.  Moreover when the complainant gave evidence that the events with respect to counts one, two and three occurred on a night on which the appellant was at the complainant's house and had watched "Twins" on television the appellant's counsel did not at any time put to the complainant that the appellant had not been at his house on that night.  When the appellant gave evidence, however, he said that he could not recall ever seeing the movie "Twins"; that he worked on the morning of Monday 21 March 1994 and that it was his invariable practice that if he was working on a Monday he would stay home on a Sunday evening; and that he would never have been at his sister's place overnight on a Sunday if he had to work on the Monday.

After the appellant gave evidence the prosecutor sought and obtained leave to call B who gave evidence that she had seen a portion of the movie "Twins" at her home on a weekend at night, some time in 1994, with her brother, the complainant, and the appellant.  She gave evidence of some other incidents which she said she could recall on that night.  She was asked to recall these events only two nights before she gave her evidence which was about 16 months after 20 March 1994.  It was not put to her by the appellant's counsel that the appellant was not present on the night on which she watched "Twins".

As is the practice in these cases, the addresses of counsel were not transcribed and there was nothing before this Court to indicate whether or not, in his address to the jury, the appellant's counsel continued to rely on the appellant's assertion, in effect, that he was not at the complainant's home on the evening on which "Twins" was shown on television.  It is quite likely, of course, that in view of the fact that he had not put this to either the complainant or B and of the appellant's admission to the police officer which he acknowledged in cross-examination, the appellant's counsel did not, in his address, urge the jury to conclude that the appellant was not present at the complainant's house on the night on which "Twins" was shown on television.

There is a rule of practice that juries are reminded that the evidence of a child should be scrutinized with particular care.  The circumstances requiring that reminder and the terms in which that reminder are given may vary from case to case depending on a number of circumstances which is unnecessary to attempt to state comprehensively.  In the present case the learned trial Judge told the jury that the complainant's evidence was uncorroborated and gave the usual warning about corroboration.  However she also directed them in the following terms:

"Now, members of the jury, there is another reason why you need to scrutinize the evidence of L carefully and that is because he is a child.  As you know from your own experience, and indeed commonsense would tell you, children, especially, can imagine things and can exaggerate, sometimes to get attention, sometimes for no apparent reason.  This may of course also be true of some adults.  Children may also be inclined to agree to suggestions put to them, especially by adults, again, this may be, of course, true of some adults.

Consider L’s evidence carefully.  Bear in mind that it is the uncorroborated evidence of child.  .... "

She gave no similar warning with respect to B’s evidence and that is the subject of the appellant's complaint before this Court.  The learned trial Judge said nothing at all about B’s evidence in her summing up.  No redirection was sought.

It must be doubted whether, where defence counsel has chosen not to question the veracity of the evidence of a child, a direction in the terms referred to in the ground of appeal should be given.  The argument that it should has even less weight where such a direction, and consequently a request for it, would have focussed attention on an issue on which the appellant's evidence was inconsistent and where the defence appears to have been conducted so as to avoid focussing the jury's attention to that issue.  And if, as appears likely, the defence did not ask the jury to conclude that the appellant was not present at the complainant's house on the night in question, the failure to give a direction in the terms sought could not have resulted in a substantial miscarriage of justice.

There are, in any event, a number of factors which require a conclusion that the failure to give a direction in the terms now sought did not, in this case, result in a substantial miscarriage.  The first is the way in which the trial appears to have been conducted to which reference has already been made.  The second is that the direction set out above, given with respect to L’s evidence, was given towards the conclusion of the learned trial Judge's summing up and would have been fresh in the jury's mind when they considered their verdict.  It is unlikely, if the jury had to consider the reliability of B’s evidence, that they would not have applied that direction to it.  A third factor is that the learned trial Judge told the jury that the complainant's evidence was uncorroborated whereas, if the presence of the appellant at the complainant's house on the night in question was in issue, that direction was unduly favourable to the appellant.

The appeal should therefore be dismissed.