R v C

[1995] QCA 260

[1995] QCA 260

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MOYNIHAN J

CA No 103 of 1995

THE QUEEN

v.

C  Appellant

BRISBANE

DATE 10/05/95

JUDGMENT

DAVIES JA:  The appellant was tried in the District Court at Cairns from 20 to 22 February this year on four counts.  He was convicted on three of those.  They were (1) maintaining a sexual relationship with a child under 16, that child being M, between 1 January 1992 and 24 April 1993.

The second was indecent assault with a child under 12 - the same child - between 1 April 1992 and 24 April 1993, and the third on which he was convicted was indecent dealing with the same child between 1 August 1992 and 24 April 1993, all of those offences having occurred at Cairns.

The complaint, who was born on 15 August 1983 was the child of a woman called B who commenced living in a de facto relationship with the appellant in January 1991.  At the end of that year they moved into a caravan situated in a caravan park in Cairns and these offences occurred generally in and around there.

The complainant gave detailed evidence which proved the offences of which the appellant was convicted.  I do not propose to recite that detailed evidence.  It is sufficient to say that her evidence was internally consistent and that although she was cross-examined at some length, her evidence shows no indication from the transcript of it of any incredibility.

The cross-examination of her really consisted on the basis of an implied general denial of anything that had occurred.  It was to the effect that the child had invented these claims after being taken to a doctor in circumstances which I will mention a little later.

However, when the appellant came to give evidence, as he did, his evidence was not only internally inconsistent and contradictory but inconsistent in a number of respects with the propositions, in effect, put to the complainant child by his counsel.  It is not at all surprising in the circumstances that the evidence of the appellant was disbelieved by the jury.

The complainant's evidence was corroborated by several witnesses, a I, a step-brother of the appellant gave evidence of an occasion when he went to a shed and saw the complainant child's hand on the appellant's shorts in the area of his crotch.  The appellant's son R gave evidence of an occasion where he had gone to the shed and found the appellant and the child in circumstances where the appellant was on his knees facing her, the child's legs were apart and the appellant jumped up in a suspicious way as the son came in.

The child was taken by her mother, after a conversation with the appellant's brother's wife, to a doctor.  The mother of the complainant then told the appellant that she had had the child examined and that the child had been sexually abused.

There were two grounds of appeal.  The first was that the verdict was unsafe and unsatisfactory.  It was quite properly conceded on behalf of the appellant by Mr Carmody, who appeared for him before this Court, that that ground was really not sustainable.  There is no doubt in my view that it is not and it should be rejected.

The other ground of appeal was that the learned trial Judge erred in permitting cross-examination of the accused beyond what was appropriate and permissible in respect of (a) credit and (b) the relationship between the complainant and the accused thereby permitting, it was said, matter to come into evidence which was of a character which would divert the jury's attention from a consideration of the true issues in the case.

In fact, the cross-examination of the appellant went almost wholly to the relationship between the appellant and the complainant and in my view was relevant to that issue.  It was also relevant to the appellant's credit in respect of those matters in issue, particularly in view of the evidence to which I referred, of the appellant, which was both internally inconsistent and contradictory and which was inconsistent with matters put to the complainant on his behalf.

In those circumstances it seems to me that this ground of appeal is also unsustainable and I would therefore dismiss the appeal.

McPHERSON JA:  I agree.

MOYNIHAN J:  So do I.

McPHERSON JA:  The order is that the appeal is dismissed.

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