R v Eades

[2001] QCA 534

[2001] QCA 534

COURT OF APPEAL

McMURDO P
WILLIAMS JA
ATKINSON J

CA No 217 of 2001

THE QUEEN

v.

RAYMOND BARRY EADES

BRISBANE

..DATE 26/11/2001

JUDGMENT

THE PRESIDENT:  Justice Williams will deliver his reasons first.

WILLIAMS JA:  The appellant was convicted after a trial in the District Court at Maroochydore of four counts of indecent dealing with a child under 12 years who was in his care, three counts of permitting indecent dealing with a child under 12 who was in his care, and two counts of unlawful anal intercourse.  He appeals against his conviction on a number of grounds. 

All the offences occurred in the period from February 1996 to September 1996.  For most of that period the complainant boy was aged seven, he would have turned eight on 29 August 1996. He was aged nearly 13 at the time he gave his evidence at trial.

The circumstances of the offences are as follows and they fall into three episodes.  The first episode occurred when the complainant stayed at the appellant's house overnight.  He apparently had some dispute with his brother and as a result he decided to take his mattress and sleep in another room.

The appellant entered that room, the two were alone.  The appellant took the complainant's pants and underpants right off, knelt beside him, touched his penis, that was count 1 on the indictment, had the complainant touch his penis, that was count 2 on the indictment, and then rolled the complainant on to his side and sodomised him, that was count 3 on the indictment.

The next three charges occurred at a later time.  The complainant went to what was described as a "show" with the appellant.  The complainant was helping set up a tent and he went under a tarpaulin, or the tent, to plug in some leads. The appellant followed him.  The appellant rubbed the complainant's penis, count 4 on the indictment, put the complainant's penis into his mouth, count 5 of the indictment, and that was followed by the appellant kneeling behind the complainant, holding him around the stomach, and sodomising him, count 6 on the indictment.

The last group of events occurred when the complainant was being looked after by the appellant in the caravan in which the complainant and his family were then living.  The appellant on that occasion pulled down his own pants, exposed his penis and had the complainant rub his penis, count 7 on the indictment.

The appellant then had the complainant put his, that is the appellant's penis, into his mouth, that was count 8 on the indictment.  The appellant then put his hand down the front of the complainant's pants and touched his penis, that was count 9.

It should be said that there was no dispute raised at the trial as to the appellant being with the complainant on each of the occasions in question.  In other words, opportunity was not in dispute.  The appellant did not give evidence but it was contended that there were inconsistencies in the complainant's evidence which ought satisfy this Court that the verdicts were unsafe and unsatisfactory.

The first inconsistency was in relation to the terms of a threat.  This was important because there was no recent complaint, but that was explained away by the complainant on the basis that he had been threatened.  He was aware of the fact that the appellant possessed a gun.  He had seen a rifle in the appellant's cupboard.

The complainant's evidence-in-chief was that the appellant said to him, "If you tell anyone else I'm going to kill you." Cross-examination revealed that in the complainant's initial statement to the police the terms of the complaint were as follows, "If you don't do it I'm going to shoot you."  On being pressed in cross-examination as to his current recollection, the complainant replied, "Tell anybody what happened and I'll shoot you." 

Bearing in mind that this was a 12 year old boy giving evidence of events which had occurred when he was aged seven or eight, I'm not convinced that there is any substantial inconsistency in the answers.  The inconsistency in language is obvious but the effect is the same regardless of the precise wording.  In my view the inconsistency, such as it is, was a matter for the jury to consider and there was no submission that the summing-up was in any way deficient in regard to the alleged inconsistencies in the complainant's evidence.

The next equally minor inconsistency related to the issue of what grade at school the complainant was in at the relevant time.  It appears that the correct position was that he was in grades 3 and 4 during the relevant period.  However, in his initial statement to the police the complainant had referred to grades 4 and 5.  Again I do not consider that that was a major inconsistency.  It was an inconsistency that was left to the jury to evaluate in determining the credibility of the complainant. 

In oral submissions counsel for the appellant also referred to an inconsistency as to whether or not the complainant had closed a door or left it open on the occasion of the first episode.  Again, at the end of his cross-examination, the complainant conceded that he really was not sure whether the door was open or closed.  That, to my mind, was another relatively minor inconsistency but as with the others, it was left to the jury and it was a matter for the jury to evaluate.

There was no challenge to the summing-up, the opportunity to commit the offences was not in issue, there was no evidence contrary to that given by the complainant, and in the circumstances I am not satisfied that the inconsistencies I have referred to render the verdict unsafe and unsatisfactory.

There are, however, two other grounds of appeal, each of which raises a significant point for this Court's consideration.  The complainant gave evidence from a room outside of the Court room.  The jury saw that evidence on video.   

A doctor was interposed in the course of the cross-examination of the complainant.  It appears that the complainant and his stepmother left the room where he was whilst giving evidence and were outside of that room in what was probably a corridor of the Court.  The door to the video room was closed.  However, it appears that for some reason, surprising though it be, the doctor's evidence was relayed to the video room and it could be heard outside in the corridor where the boy was.

In the course of giving his evidence the doctor gave two answers which are relevant for present purposes.  He was asked, "What sort of injury, if any, would you expect to result from that happening?"; "that" being the sodomising of a seven year old child.  The doctor answered:

"It would depend on the degree of - how could I put this - aggression in that attack.  If it was - if the anus was penetrated rapidly it could certainly lead to bleeding and some stretching up of the sphincter, but it usually doesn't cause any tears or anything such as that because if it did the child would end up coming to hospital and requiring stitching, so that's actually very, very rare.  If it was done more slowly, then it would be possible to commit that act on a child without causing much in the way of visible injury but it would cause a heck of a lot of pain to the child."

Under cross-examination the doctor was asked:

"Would you expect that in many cases there would be some pain the next day?  Let's say, for example, it happened at night, in the evening;  would you expect the child to still experience pain the next day?"

The doctor's answer was in these terms:

"I'd say that's a very hard question to answer.  Some do, some don't.  The majority of ones that I've seen haven't but I - it certainly would occur.  It would depend on the degree of trauma.  As I've said it depends on the rate of entry.  If it was aggressive and rapid, as in a violent rape, it would possibly cause more injury than a more persuasive, slower method and again the first method would probably cause more pain than the latter, but whether or not it caused pain the next day, in a lot of children it doesn't."

After the doctor's evidence concluded the cross-examination of the complainant continued.  A few minutes into that further cross-examination counsel for the appellant put this question:

"How did he put the penis in?  Did he put it in quickly or slowly, or what?  How would you describe the way it went in?" 

The answer was, "Slowly, sir." 

There was an application to have the jury discharged once it became known that the complainant might have heard the doctor's evidence.  Defence counsel contended that the answer "slowly" could well have been motivated by the complainant boy hearing the medical evidence.  The learned trial Judge declined to discharge the jury on that ground.  I should say that the matter only emerged after the jury had retired to consider its verdict and that is when the application for the discharge of the jury was made.

It is of concern that the medical evidence could be heard outside the courtroom in the circumstances I have indicated. However, I am not persuaded that any of the medical evidence affected the complainant boy's evidence; in particular I am not satisfied that it affected the answer "slowly" to which I have referred.

There are to my mind at least three reasons why that should be the conclusion reached.  Firstly, the doctor's use of the words "slowly" or "slower" in the passages I have quoted occurred in what could only be described as lengthy, complex answers.  For example, in the first quote the word sphincter is used and it is doubtful given the knowledge and understanding of the complainant boy that he would have had any appreciation of what the doctor was really talking about. Secondly, the doctor's evidence contained other more simple propositions which could have been exploited by the complainant if he wanted to do so.  For example there was, particularly in cross-examination, mention of the fact that the penis would need to be erect in order to effect penetration.  That does not seem to be a matter that the complainant took up in his later evidence.

Thirdly, when one comes to the question that was put to the complainant, he was given a choice, quickly or slowly.  The words "or what" could not possibly add anything.  So, he was given a question which essentially elicited a choice between quickly and slowly.  The answer "slowly" is completely consistent with all of his evidence-in-chief and with the reasonably lengthy cross-examination which had occurred prior to the interposition of the medical evidence.  Counsel for the appellant said that if anything the position was neutral, but it does seem to me that the whole effect of the boy's evidence up to this point of time was more consistent with an answer "slowly" than with an answer "quickly".  Given the choice, that was the only reasonable answer given his earlier evidence.   I am not satisfied that any of the doctor's evidence that may have been heard and understood by the boy affected in any way the answer that he gave in cross-examination.

The final point relates another application to discharge the jury, this time on the basis that a juror could not be impartial.  In the course of the boy's mother giving her evidence, and against the background of an endeavour to fix a year in which events occurred, she referred to the fact that a daughter of hers was killed in a motor vehicle accident. 

The trial occurred in Maroochydore and most witnesses lived in the general area of the Sunshine Coast.  When the mother gave that evidence about the daughter being killed, it triggered in the mind of one of the jurors the fact that she knew of the family in question.  Because she was concerned at that, that juror raised the issue with the Judge by sending a note to the Judge through the bailiff.  In that note, it was stated that the juror did not think the knowledge would affect her verdict.  The Judge then spoke to the juror; the juror indicated that her knowledge of the family would not affect her, and she indicated that she could remain impartial.

She said in answer to some questions from the Judge that as a teenager attending school she was aware of these other young children, she described them as being little, also travelling on the bus.  She said that she remembered the kids.  They were children in the complainant's family.

There was no question that she had any relevant knowlege of the complainant.  There was also no question that she knew the appellant.  In those circumstances, the learned trial Judge applying the test that a juror had to be impartial was satisfied that the juror was impartial and did not discharge the jury.  In my view, in the circumstances, the conclusion reached by the learned trial Judge was correct and there is nothing in the point.

They are the only grounds taken on the appeal against conviction, and for the reasons that I have given, I am of the view that the appeal against conviction should be dismissed.

THE PRESIDENT:  I agree. I was initially concerned about the failure to discharge the jury when it emerged that it was likely the complainant heard the evidence of Dr Harris, the Director of Paediatrics at the Nambour General Hospital.  Justice Williams has set out the relevant facts which I will not repeat.  The question for this Court is whether the failure to discharge the jury has led to a miscarriage of justice; whether there is a significant possibility that because this occurred and the jury was not discharged, the appellant was deprived of the chance of an acquittal.

The child was only 12 years old and was in a special stream at High School for children with learning difficulties. 

His foster mother said he did not seem to be paying attention to the evidence.  The evidence was of a technical nature and the foster mother's observations seem probable.  Importantly, the evidence the boy later gave as to the method of penetration was to a direct question,

"How did he put the penis in?  Did he put it in quickly or slowly or what?  How would you describe the way it went in?‑‑ Slowly, sir."

The answer involved only two real options and the answer, "Slowly, sir" was not inconsistent with the evidence he had given before he apparently heard Dr Harris' evidence.  
Dr Harris' evidence did not seem particularly significant in the trial and nor did the complainant boy's answer. 

Dr Harris' evidence left open the possibility that even quite fast penetration of the anus would not necessarily cause enduring pain or injury to a child of seven years.  There is no suggestion that Dr Harris' evidence or the complainant's featured answer was a matter of any significance in the prosecution or defence address nor was it referred to by the learned trial Judge in his summing-up.

In these circumstances, I am satisfied that the appellant was not deprived of the chance of an acquittal through the failure to discharge the jury once it became known the complainant might have heard the doctor's evidence.  I agree with the orders proposed by Justice Williams.

ATKINSON J:  I agree with the orders proposed by Justice Williams for the reasons given by the President and Justice Williams.

THE PRESIDENT:  The order is the appeal is dismissed.

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