R v C

[1994] QCA 318

IN THE COURT OF APPEAL  [1994] QCA 318

SUPREME COURT OF QUEENSLAND
  C.A. No. 170  of 1994
Brisbane

[R. v. C]

BETWEEN:

T H E     Q U E E N

v.

C  Appellant

Fitzgerald P.
  Davies JA.
  McPherson JA.

Judgment delivered 01/09/94

Judgment of the Court

Appeal dismissed. Application for leave to appeal against sentence refused.

CATCHWORDS:CRIMINAL LAW - inconsistent verdicts - indecent dealing - appellant father charged with five counts of indecent dealing with daughter from the ages of 9 to 13 years - acquitted of three charges - complainant gave evidence of indecent dealings some time ago over an extended period of her childhood - complainant had made false accusations before - whether a reasonable jury could accept the complainant's evidence on two counts while rejecting similar evidence on the other three counts

Counsel:Mr. S.E. Herbert Q.C. for the appellant

Mr. B. Butler for the Crown

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the Crown

Hearing Date: 28/07/94

Judgment delivered   01/09/94

The appellant was tried in the District Court on five counts, namely:

"That on a date unknown between the 30th day of November 1991 and the 1st day of February 1992 at Marsden in the State of Queensland you unlawfully and indecently dealt with one A, a child under the age of 16 years.

And that at the time aforesaid you then knew that the said A was your lineal descendant.

...

AND FURTHER that on a date unknown between the 25th day of December 1991 and the 1st day of February 1992 at Marsden in the State of Queensland you without legitimate reason wilfully and unlawfully exposed one A, a child under the age of 16 years, to an indecent video.

...

AND FURTHER that on a date unknown between the 30th day of September 1992 and the 19th day of November 1992 at Waterford West in the State of Queensland you wilfully and unlawfully exposed one A a child under the age of 16 years to an indecent act.

And that at the time aforesaid you then knew that the said A was your lineal descendant.

...

AND FURTHER that on or about the 17th day of November 1992 at Waterford West in the State of Queensland you unlawfully and indecently dealt with one A, a child under the age of 16 years.

And that at the time aforesaid you then knew that the said A was your lineal descendant.

...

AND FURTHER that between the 3rd day of July 1989 and the 19th day of November 1992 at Marsden and elsewhere in the State of Queensland you being an adult maintained an unlawful relationship of a sexual nature with one A, a child under the age of 16 years.

And in the course of the said relationship you unlawfully and indecently dealt with one A, a child under the age of 16 years.

And further that at the time aforesaid you then knew that the said A was your lineal descendant.

... ."

He was acquitted on the first three counts, but convicted on the fourth and fifth counts. He was sentenced to imprisonment for six months for the fourth count, and to imprisonment for three years on the fifth count.  He has appealed against his convictions and applied for leave to appeal against his sentences, although the application for leave to appeal against sentence was pursued only in respect of the sentence on the fifth count.
     The case against the appellant depended on the evidence of the complainant, his daughter, who was born on 4 January 1979.  As the prosecution case was initially presented, the evidence to support the fifth count was substantially, if not wholly, the evidence from the complainant of the activities which formed the basis of counts one, three and four.  As has been noted, the appellant was acquitted on counts one and three, as well as count two.  Whether the appellant's conviction on count 5 could have been permitted to stand in those circumstances, if there were no other evidence to support that count, need not be considered.  There was ample evidence from the complainant, especially in answers given during cross-examination, to justify the appellant's conviction on count five if the jury accepted her evidence. She spoke, in general terms, of a pattern of sexual conduct towards her by the appellant over a period of years.
     The submission for the appellant was that he should not have been convicted on either count 4 or 5 because a reasonable jury, acting reasonably, should not have accepted the appellant's evidence.  There were three matters relied on for this submission.
     In 1988, when the complainant was nine, she made a false complaint of a sexual nature against the appellant, and further complaints of a sexual nature against one of her grandfathers and an 11 year old cousin.  The complainant, in her evidence, admitted that the allegation that she then made that she was pregnant to the appellant was false, but she asserted that, at that time, there had been sexual activity towards her by the appellant, stopping short of intercourse.  Further, she persisted with her statement that her grandfather and cousin had behaved as she had earlier alleged, although in the intervening period she had withdrawn her allegation against at least her grandfather.
     Secondly, the appellant criticised the lack of precision and detail in the complainant's evidence, and the inconsistencies, and contradictions of earlier statements by her, which it contained.  It is unnecessary to record these deficiencies in the complainant's evidence in detail.  It was accepted by the appellant that the inconsistencies principally, if not wholly, concerned the time or place of specific instances of sexual conduct by the appellant, especially in relation to the incidents the subject of the counts of which he was acquitted.
     Thirdly, the appellant relied on those acquittals as indicative of a conclusion by the jury that the appellant's evidence was unreliable, so that it could not safely be used as the basis for convictions on counts four and five.
     The complainant's false complaint against the appellant some years earlier, and the uncertainty raised by her conflicting statements about her grandfather, which might also have been false, did not disqualify her from acceptance as a witness of truth, but provided an important factor when the jury  considered her evidence at trial, especially her inconsistencies and contradictions; her previous falsehood or falsehoods gave added significance to those inconsistencies: cf. R. v. Charles (C.A. No. 127 of 1992; unreported judgment delivered 7 September 1992).
     But, that being so, neither those defects in her evidence nor the appellant's acquittal on the three counts, one, two and three, leads to a conclusion that the jury should have rejected the complainant’s evidence.  On the contrary, the acquittals are totally compatible with a view by the jury that, although the complainant was essentially a witness of truth, she was unreliable in matters of detail in relation to events which had occurred a considerable time earlier over an extended period of her childhood.  Counts one, two and three contained reference to such matters, notably times and places.  The point is well illustrated by a comparison of those three counts with count four, which included similar details.  The jury convicted on count four, but the evidence from the complainant clearly identified that occasion by reference to the time for her initial complaint to the authorities.
     The difficulties associated with the prosecution case against the appellant are not uncommon in proceedings involving allegations of sexual offences against children, which are very numerous.  It is not a necessary consequence that a jury cannot properly convict in such circumstances, and this is not a case in which such a conclusion is justified. The appeal against the convictions should be dismissed.
     The appellant's argument in connection with his application for leave to appeal against sentence was that his sentence was manifestly excessive, and had been influenced by a misapprehension by the trial judge as to the frequency of the appellant's misconduct.
     Assuming, without deciding, that the latter proposition is correct, the best position which could arise for the appellant would be that this Court not merely consider whether the existing sentence is manifestly excessive but re-sentence afresh.
     It is said in the appellant's favour that he has no previous convictions, apparently a generally satisfactory work record, has experienced difficulties in his childhood and adult relationships, has a drinking problem and "is of dull normal intelligence", to quote from his written submission.
     On the other hand, the complainant is the appellant's daughter, and he engaged in sexual activity in relation to her between the ages of 9 and 13, when he ceased following his misbehaviour being reported to the authorities. At the time, he was in a position of trust towards her.  He masturbated in her presence, on at least one occasion ejaculating on her while she was in the shower. He kissed her on, or in the area of, her vagina, and had her kiss and/or suck his penis.  He kissed her on the mouth with his mouth open. He exposed her to pornographic videos.  He showed no remorse, but exposed his daughter to the ordeal of a trial and rigorous cross-examination. His conduct was revolting, and such conduct is viewed with outrage in the general community. 
     Taking these matters into account, a sentence of imprisonment for three years on count 5 is appropriate.  The application for leave to appeal against sentence should accordingly be refused.