R v Dickson

[2001] QCA 364

[2001] QCA 364

COURT OF APPEAL

McPHERSON JA
WHITE J
WILSON J

CA No 109 of 2001

THE QUEEN

v.

JOHN LAURIE DICKSON  Appellant

BRISBANE

..DATE 04/09/2001

JUDGMENT

McPHERSON JA:  I will ask Justice White to give the first judgment.

WHITE J:  The appellant was tried and convicted on 26 April this year in the District Court at Brisbane on two counts of indecently dealing with a child under 12 years.  Both counts were alleged to have occurred on a date unknown between
1 July 1991 and 29 December 1992.  The appellant was sentenced to 18 months imprisonment.

Mr Rafter, who appears on behalf of the appellant, has indicated that the second ground of appeal of the grounds that were filed by the appellant, namely that the learned trial Judge erred in not directing - not adequately directly the jury in accordance with the principles espoused in R v. Longman (1989) 169 CLR 79, will not be pursued on this appeal.

Accordingly the ground of appeal is ground one, namely that the verdict is unsafe and unsatisfactory and/or unreasonable and cannot be supported having regard to the fact that there was no fresh complaint, no corroboration, that the accused gave evidence denying the allegations and in effect that it was a question of whether the jury believed the complainant or the appellant. 

The complainant was born on 28 December 1982.  At the time when these offences were said to have been committed against her she resided with her family in a street in a north Brisbane suburb.  The next door neighbours, the D’s and their children, were their friends.  The appellant is Mrs D's brother.  The complainant said that the appellant spent considerable time in the D's home.  Count 1 was alleged to have occurred when the complainant was about nine. She was friends with the D's son, who was her age, and she had gone to visit the D's home.

Her evidence was that she was watching television by herself in a room at the back of the house which was known as the back room.  She said that in the course of her watching the television the appellant came in and was watching also.  He placed his hand on her thigh and then moved his hand under her shorts and touched her in the area of her vagina outside her underwear.

Count 2 occurred when the appellant was looking after his sister and her husband's home while they were away on holidays towards the end of 1992.  The complainant said that the appellant had asked her to come over to play Super Nintendo.  As she was playing the game the appellant was lying beside her.  He put his hand on her thigh and then put his hand under her shorts and rubbed the outside of her vagina.  He then inserted his finger into her vagina.  He then placed his hands on her chest. 

The complainant's evidence was that the appellant then said that it was his turn to play the game and he grabbed the remote control and started playing.  Her evidence was that he then took her left hand and placed it in his groin area and kept rubbing her hand in that area.  It seems that the television set went fuzzy and the appellant got up to fix it. At that point the complainant said she jumped up, said she was going and before she left the appellant said to her, "Don't tell your mum about this." 

The appellant gave evidence on his own behalf in which he denied flatly the complainant's allegation.  He agreed that he had stayed at his sister's home at Christmas 1992.  He was unable to supplement the evidence further than that.  He said he was unable to recall whether he had a Nintendo machine at the home on that occasion.

The appellant said that he had seen the complainant on a number of social occasions since Christmas 1992.  It would appear that the neighbourhood was a very sociable one and invitations were issued to parties on an open basis so that members of people's extended family were invited to attend.  This was the case with the appellant's wedding in March 1995. 

The complainant agreed that she had attended the wedding as an onlooker but denied that she had further participated in the proceedings by going into the hall.  When the appellant gave evidence he said that a video had been taken of the wedding reception and it showed the complainant in the hall. 
The video was ultimately tendered - it was not immediately available at the trial - which it would appear indicated that the complainant was indeed inside the hall.  The complainant was not recalled to have this evidence put to her.  No doubt it was a tactical decision by the defence. 

It was also put to the complainant that she had attended the appellant's mother's 65th birthday celebration in 1998, that they had spoken with each other and that as the complainant was going she had kissed the appellant on the cheek goodbye.  The complainant said when this was put to her in cross-examination that she did not recall attending the birthday and she thought it highly unlikely that she would have dealt with the appellant in that way. 

The appellant mentioned other social occasions at which the complainant was present subsequent to the alleged offending behaviour.  It was suggested that the complainant would hardly socialise with the appellant in this way if the things alleged had occurred, but again this was a matter for the jury against the background of the kind of community that seems to have existed where they lived.

It was a matter for the jury to decide whether a young girl of about 13 would have remembered whether she was in the hall or not at a fairly informal occasion like the appellant's wedding.  This evidence was also used to suggest the unreliability of the complainant's testimony about essential matters relating to the offending conduct. 

The appellant contends that the conviction is unsafe and unsatisfactory because the complainant did not make a complaint until her final year at school in 1998, that there is no corroborative evidence and further the direct denial by the appellant that he had committed these offences. 

But the appellant did agree that he was present at the house next door at the times in question and that the complainant was there.  There was no other peripheral evidence about the circumstances of the offence which contradicted the complainant's evidence so that the jury was simply left with her word against his.  The reliability of the complainant's evidence which was challenged because of the denials about her presence in the hall at the wedding and her failure to recall her attendance at his mother's birthday, if indeed she were there, were all matters in my view that the jury could assess in the way in which they were encouraged to assess the evidence of witnesses at trial. 

The complainant's evidence was consistent.  She had given evidence at committal and was not challenged in the usual way with inconsistencies between committal evidence and trial evidence.  The evidence was not improbable.

The learned trial Judge gave very strong warnings about how the jury should assess the evidence bearing in mind the delay in making the complaint and that there was no corroboration.  Indeed, his Honour went further by giving a warning about the danger of convicting without corroboration when such sexual allegations are made.

The differences were really very peripheral matters indeed in the complainant's evidence.  This was very much in my view a jury question.  The issues were exposed for their consideration by the learned trial Judge.  The verdict could not in my view be said to be unsafe or unsatisfactory for those reasons and I would dismiss the appeal.

McPHERSON JA:  I agree.

WILSON J:  I agree.

McPHERSON JA:  The appeal against conviction is dismissed.

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