R v C

[1995] QCA 327

IN THE COURT OF APPEAL [1995] QCA 327

SUPREME COURT OF QUEENSLAND

C.A. No. 116 of 1995

Brisbane

[R. v. C]

THE QUEEN

v.

C

Appellant

Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 04/08/1995
Judgment of the Court

APPEALS AGAINST CONVICTIONS DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. THE APPEAL IS ALLOWED AND THE SENTENCE IMPOSED BELOW IS SET ASIDE AND IN LIEU THEREOF, A SENTENCE OF TWO AND A HALF YEARS IMPRISONMENT IS SUBSTITUTED.

CATCHWORDS:	CRIMINAL LAW - indecent dealing with a child under 12; whether the inability of the witness, in giving evidence at trial, to depose to some of the facts stated in an out-of-court statement, makes the statement inadmissible despite s.93A Evidence Act 1977; whether trial Judge breached rule of practice of alerting jury to the danger of acting on the evidence of a child; whether the statement of child in the recorded interview was capable of being regarded as evidence of fresh complaint; whether complainant's evidence was unreliable.
SENTENCE - whether manifestly excessive.
Counsel:	Mr. S. Hamlyn-Harris for the appellant Mr. W. Clark for the respondent
Solicitors:	Legal Aid Office for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 8 May 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 4th day of August 1995

The appellant was convicted in the District Court on 3 March 1995 of two counts, each that on about 11 September 1994 he unlawfully and indecently dealt with E a child under the age of 12. The complainant was 11 at the time of commission of the offences, at the time of taking part in a recorded police interview referred to below and at the time of trial. The appellant appeals against his convictions on four grounds:

1.    that the trial Judge erred in law in allowing into evidence a tape recorded interview between the complainant and a police officer on 12 September 1994;

2.    that the Judge failed to warn the jury of the danger of acting on the evidence of the complainant because she was an 11 year old child;

3.    that the Judge erred in directing the jury that what the complainant said in the recorded interview was capable of being regarded by them as evidence of fresh complaint; and

4.    that the verdicts were unsafe and unsatisfactory.

Ground 1

The recorded interview between a police officer and the
complainant, which took place on the day after the commission of
the offences, was admitted under s.93A of the Evidence Act 1977.
In the Court below objection was taken to its admissibility on
the basis that it would be unfair to the appellant to admit it
because of a conversation between the complainant and her mother
on 11 September in which the complainant initially denied she had
been touched by the appellant; and because it was only after, on
the morning of 12 September, her mother had informed her that the
appellant had touched her friend K, that the complainant said
that he had also touched her. It was submitted that, as the
complainant had been encouraged to make the complaint in
consequence of her mother's urging, the evidence should be
excluded pursuant to s.130 of the Evidence Act.

This submission was made before any evidence was called. It was rejected and no subsequent submission was made during the course of the trial with respect to the admissibility of this evidence.

Before this Court the objection to the admissibility of this evidence was put on a wider basis. To those contentions were added the contentions that the recorded interview was the only evidence upon which the jury could act to convict, that it was not corroborated and that the specific allegations in it were not repeated by the complainant in her evidence given at the trial. It was submitted that, because of the last of these, the complainant's allegations could not be effectively tested in cross-examination and reliance was placed on the joint judgment of Fitzgerald P. and Demack J. in R. v. Cumner (C.A. No. 108 of 1994, judgment delivered 28 July 1994). Notwithstanding the appellant's failure to renew his objection after the complainant had given evidence we propose to decide the ground on that wider basis.

The appellant was the grandfather of the complainant's
friend K. The complainant's mother and K’s mother were friends.
On the night of 10 September 1994, which was a Saturday, the
complainant and her two older brothers, slept overnight at the
house of K’s parents. The appellant was also staying in that

house overnight. The two girls and the appellant slept in K’s

bedroom.

In the recorded interview the complainant gave the following account. The events constituting the first count occurred in that bedroom on the Sunday morning. The complainant was sitting on the bed in the room. K, who was then only seven, was in another part of the room playing with her toys. The appellant touched her on the outside of her clothing in the region of her vagina. This occurred for about ten seconds. He told the complainant not to tell anybody or he could end up in gaol because she was under age. He then left the room. The events constituting the second count occurred a short time later whilst the complainant was eating her breakfast at the kitchen table. The appellant touched her, for about ten seconds, on her undies in the region of her vagina whilst they were sitting at the table.

Also in that interview the complainant mentioned some other incidents in which the appellant touched her on the outside of her clothing in the region of her breasts. These incidents were not the subject of any charges but her recorded evidence about them was admitted as evidence of the relationship between the appellant and her.

It appears from the transcript of the recorded interview that the complainant was reluctant to talk about the events described above. Nevertheless the interviewers did not lead her on crucial matters and no objection was taken to the form of the questions.

The complainant gave unsworn evidence at the trial which was about six months after the occurrence of the alleged offences and the recorded interview. She said that she recalled being touched on the vagina and on the "boobs" by the appellant and that this was at K’s house on an occasion when her mother had gone to a party. This sufficiently identified the weekend of 10-11 September which was, in any event, identified by the complaint made to the police on 12 September. However she was unable to say precisely when and where, on the weekend at K’s house, the touching on the vagina or on her breasts occurred. She said that the touching on her vagina occurred three or four times but could not recall any particular incident or how many incidents there were. However unless one construes her evidence of the number of times she was touched as referring to the number of occasions on which touching occurred, there were no inconsistencies between her recorded statement and her evidence in court.

Section 93A makes admissible as evidence a statement by a child under 12 having personal knowledge of the matters dealt with in the statement if it was made soon after the occurrence of the facts stated and the child is available to give evidence in the proceeding. It was not disputed that those requirements were satisfied here.

In R. v. Morris (C.A. No. 390 of 1994, judgment delivered 15 March 1995) Dowsett J. with whose reasons the other members of the Court (The Chief Justice and Pincus J.A.) agreed, described the purpose of s.93A as being "to avoid the difficulties inherent in extracting cogent evidence from young witnesses in Court". We agree with that statement.

Section 98 allows a court in its discretion to reject a statement complying with s.93A if it appears to be inexpedient in the interests of justice that the statement should be admitted. Section 130, which has a more general application, preserves the power of a court in a criminal proceeding to exclude evidence if satisfied that it would be unfair to admit it.

Evidence given at a trial may raise such serious doubts about the reliability of a statement otherwise admissible under s.93A as to make its admission inexpedient in the interests of justice or unfair to the accused. But we find it difficult to imagine a case where, there being no reason to doubt the reliability of such a statement, a court would exclude it under either of the above provisions. Moreover the inability of the witness, in giving evidence at trial, to depose to some of the facts stated in the statement would not, without more, ordinarily make its admission inexpedient or unfair, for that would defeat the purpose of s.93A. The joint judgment of the President and Demack J. in R. v. Cumner should not be construed as authority for the proposition that, whenever a child who has given a statement pursuant to s.93A does not repeat that statement in evidence at the trial, the statement should ordinarily be excluded. That would be inconsistent with the purpose of s.93A and with the decision of the Court of Criminal Appeal in R. v. Cowie; ex parte Attorney-General [1994] 1 Qd.R. 326.

In the present case the complainant was able, in giving evidence at the trial, to recall the weekend on which the incidents occurred, that they occurred at the house of her friend K and that they involved the appellant touching her on the vagina. Beyond that she was unable to recall the details of the offences which she had given in her recorded interview. The jury were able to form their own view of the reliability of the complainant's evidence in that recorded interview after seeing and hearing it and seeing and hearing the complainant giving evidence in court.

No other evidence in the case casts doubt on the reliability of the recorded statement. Whilst it may be accepted that her mother's statement that the appellant had touched her friend K induced the complainant to make the recorded statement, there is no reason to believe that it was any the less reliable for that.

Moreover in the absence of evidence from the appellant the jury were entitled to think that, contrary to the appellant's story to his daughter and her fiancé that the complainant had got into his sleeping bag whilst he was asleep and that, on awakening, he had told her to get out, the complainant's evidence provided the explanation for his statement to the fiancé that he "may have got himself into some strife at G’s residence".

The statement tendered under s.93A was, in our view, correctly admitted by his Honour and did not require exclusion in the light of any subsequent evidence.

Ground 2

This ground relied on the judgment of this Court in R. v.Wilson (C.A. No. 355 of 1994) judgment in which was delivered on 14 November 1994. In that case all members of the Court referred to a rule of practice that juries are reminded that the uncorroborated evidence of a child should be scrutinized with particular care and found a departure from that rule of practice to have occurred in that case such that it justified allowing the appeal and ordering a new trial.

Whilst we must accept that rule of practice, the way in which it should be complied with must depend on the circumstances of each case including the apparent level of maturity of the child, the other evidence in the case and any other warning which the Judge may be obliged to give with respect to that evidence. The Court pointed out in R. v. Muller (C.A. No. 58 of 1995, judgment delivered 16 June 1995) the way in which that warning is formulated is very much a matter for the judgment of the trial judge in each case.

In the present case the learned trial Judge, in the course of his summing up to the jury, said:

"Members of the jury, you need to remember that a child is not a small adult. A child is a child and you cannot expect a child to think like an adult or to behave like an adult or to have the memory of an adult. One of the problems with children is that they do not have good memories. That is the very reason why Parliament has authorised the taking of a child's complaint on video in this situation."

Then, after telling the jury why he said that a judge should warn a jury in respect of the uncorroborated evidence of a complainant in a sexual offence, went on to deal specifically with the case where such a complainant is a young girl such as this complainant. His Honour said:

"A young girl might, for instance, make a false complaint because of spite or anger or revenge or a resentment of some authority exercised over her. On other occasions there does not seem to be any apparent motive for the making of the false complaint, but because experience has shown that false complaints are made on some occasions you must scrutinize the evidence of the girl with care."

Whilst it might have been better, given the existence of the rule of practice, for his Honour to have separated the warning required because the complainant was a young girl from that required because her evidence was uncorroborated, in our view he sufficiently alerted the jury to any difficulties which might inhere in her evidence by reason of her youth. This ground must therefore fail.

Ground 3

The argument of the appellant here was not that the complaint was not made sufficiently soon after the commission of the offence. It could hardly have been made sooner. The contention was that, because when first questioned by her mother the complainant denied having been touched by the appellant, her complaint to the police did not show consistency of conduct. There are two reasons why this contention must fail.

The first is that, notwithstanding her initial reluctance to reveal what the appellant had done to her, the complaint to the police was consistent with her evidence given in court. There was, in any event, a reasonable explanation for that reluctance;

K was her friend, the appellant was K’s grandfather and he had

told her that he would go to gaol if she complained.

The second reason is that the complainant's conversation with her mother was never adduced in evidence. Of course it could not have been adduced by the prosecution, who called her, but it could have been by the appellant who failed to do so. There was an obvious explanation for his failure to do so; it may have elicited evidence, excluded from the statement admitted under s.93A, that the appellant had been in gaol before for offences of this kind.

This ground therefore also fails.

Ground 4

This ground requires a conclusion that the complainant's evidence was unreliable. It appears from what we have said earlier that we do not think there is any basis for that conclusion. And, as we mentioned earlier, it derived support, in the absence of some explanation from the appellant, from his statement to his daughter on the following day.

The appeals against convictions must therefore be dismissed. The appellant also seeks leave to appeal against his

sentence which was one of four years imprisonment on each count, the sentences to be served concurrently. The appellant is 58 years of age. He has, as we have already mentioned, a previous conviction in respect of sexual offences involving a child. Those offences which were committed, and in respect of which he was sentenced in New South Wales, were much more serious than these. They occurred during a period of approximately three or four months commencing in late September or early October 1990. There were nine offences in all. Five of them were of having sexual intercourse with a 13 year old child, a house guest in his home. Of the four remaining charges two were of committing an act of indecency with that child and two were of inciting an act of indecency with that child. He was sentenced to a total period of three years and three months imprisonment. He was on parole in respect of those offences when he committed these.

Although offences of this kind, involving as they do a young child, must always be viewed seriously, those in the present case are at the low end of the range of such offences for the purpose of sentence. They involved merely touching, and that on the outside of clothing. Had it not been for the existence of the previous conviction the appellant may not even have been sent to prison. However the commission of those previous offences and the fact that the offences the subject of this appeal were committed whilst the appellant was still on parole in respect of them, required the imposition of a custodial term.

Nevertheless, having regard to the authorities cited to us, we think that the term of imprisonment imposed was manifestly excessive. The learned trial Judge's remarks on sentence that he suspected that the appellant was a persistent and determined child molester and that he would again molest young children as soon as he was released from gaol was not justified merely from the fact of the previous offences and there was no other evidence to support it. Nevertheless it seems likely that the suspicions caused his Honour to impose the high sentence which he did.

There is one further relevant matter. We were told that the appellant's parole in respect of his New South Wales offences was, on 30 March 1985, revoked as from 11 September 1994, the date on which the first offences were committed. In consequence he remains liable to imprisonment in New South Wales for one year three months 21 days. We were also told that, in accordance with present policy in that State, he is unlikely to be extradited there upon the conclusion of his prison term here. But the possibility that he may, at some future time, have to serve that sentence cannot be ignored.

For all of the above reasons the application for leave to appeal against sentence should be granted, the appeal allowed, the sentence imposed set aside and in lieu a sentence of two and a half years imprisonment be substituted.