R v Elliott

[1993] QCA 30

[1993] QCA 030

COURT OF APPEAL

FITZGERALD P
DAVIES JA
McPHERSON JA

CA No 332 of 1992

THE QUEEN

v.

RICHARD THOMAS ELLIOTT

BRISBANE

..DATE 4/02/93

THE PRESIDENT: Mr Justice McPherson will deliver the first judgment.

McPHERSON JA: The appellant in this appeal against conviction is Richard Thomas Elliott.  He was convicted at his trial in the District Court at Toowoomba of one count of indecent dealing with a boy under the age of 12 years. The indecent act charged as disclosed by the evidence was that of placing his mouth on the boy’s penis and sucking it.

Having been convicted of this offence, the appellant was sentenced to two years’ imprisonment.  The notice of appeal contains a formal appeal or application for leave to appeal against sentence, but in the course of the hearing before us, the appellant, who appeared in person, announced that he no longer wished to pursue that application.  The application for leave to appeal against sentence must therefore be refused.

The circumstances of the offence may be briefly stated as follows.  The appellant used or occupied a caravan located in the yard of premises owned or occupied by the parents of the complainant boy at Drayton in Queensland. The appellant had in that caravan a train set which the evidence shows he had owned since he was a lad of about the same age as the complainant.

On the afternoon in question, which was Christmas Eve, the boy invited the complainant into the caravan.  It appears that the appellant was changing his clothes and at some stage had his trousers off.  He began to show the boy pornographic pictures in a magazine and to talk to him about the anatomical details shown in those pictures.

In the course of this activity, if it merits that appellation, he sucked the boy’s penis.  At some stage while the photographs were being displayed, the boy’s father came into the caravan and asked what they were doing.  The boy later told his mother and sister what had happened.

He was medically examined and swabs were taken from his penis.  They were transmitted to Brisbane and subjected to forensic testing.  The forensic scientist who carried out the tests was Ms Khristine Bentley, who gave evidence at the trial.

The ground of the appeal against conviction is that the jury verdict was unsafe in that the prosecution case lacked any “hard” evidence to support the conviction; and, in particular, there was an absence of any corroborative evidence.

So far as the latter is concerned, the Judge directed the jury with respect to corroboration and the desirability of having it in a case like that before them.  The evidence to which he directed their attention as capable of being corroborative was the evidence of the forensic expert.  She said she found on examination of the swabs the presence of human saliva on the swab taken from the base of the boy’s penis.  The appellant, in the course of his submissions before us, appeared to try to make something of the fact that there was no evidence of saliva on the swab taken from the glans of the penis, nor any evidence of spermatozoa on the penis.

It is true that Ms Bentley came to those conclusions with respect to the swabs she examined; but they are, of course, not on the swab taken from the base of the penis.  That, the jury would have been justified in thinking, demonstrated that the boy’s account of what had happened was probably true in as much as the saliva may well have come upon the penis by the means the boy testified to, which was the act of the appellant in sucking the penis.  It might indeed well be thought that there was scarcely any other possible explanation of how it could have got there.

The appellant before us did suggest some other explanations and they were evidently put before the jury which rejected them.  For my part, I would have thought that the evidence of Ms Bentley in this instance about the presence of saliva was the strongest possible indication that the boy’s story was correct, and it would certainly persuade me, as it did the jury, beyond reasonable doubt that some sucking of the penis had taken place.

That left for consideration only one other matter which was the identity of the person who was responsible for the saliva being there.  The answer to that is perfectly clear.  The evidence of the father supported the son’s story that both of them were together, that is, the appellant and the boy were together, in the caravan at about the time when the offence was alleged by the boy to have been committed.  There is no suggestion that any other person had the slightest opportunity to do the act alleged.  The circumstantial evidence, therefore, objectively pointed very strongly at the appellant as the person who was responsible for the act.

Both requirements, as they are in the present case, with respect to corroboration were therefore satisfied and the jury, in my view, came to the correct conclusion when they held that the appellant was guilty of this offence.

In the circumstances, I consider that the appeal against conviction cannot be sustained and that it should be dismissed.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT : The order of the Court is appeal against conviction dismissed, application for leave to appeal against sentence refused.