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

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elliott

Details

AGLC: R v Elliott [1993] QCA 30
Case: [1993] QCA 30
Decision Date: 4 February 1993

CaseChat Overview and Summary

In the appeal case of R v Elliott, the appellant, Richard Thomas Elliott, faced a conviction for indecent dealing with a boy under the age of 12 years. The alleged incident occurred when the appellant, who was using a caravan owned by the boy's parents, showed the boy pornographic pictures and engaged in inappropriate sexual conduct by sucking the boy's penis. The case was tried in the District Court at Toowoomba, where the appellant was found guilty and sentenced to two years in prison. The appellant appealed against the conviction, arguing that the evidence was insufficient to support the jury's verdict. However, the appeal was dismissed by the Court of Appeal, with the judges concluding that the evidence was sufficient and corroborated to uphold the conviction.

The legal issues in the case centred around the sufficiency and corroboration of the evidence presented against the appellant. The primary concern raised by the appellant was the lack of direct, or "hard", evidence to support the boy's testimony. Specifically, the appellant questioned the absence of corroborative evidence to substantiate the boy's account of the incident. The court had to determine whether the evidence, including the forensic examination of swabs taken from the boy's penis, was sufficient and properly corroborated to support the jury's decision. The court also needed to consider whether the appellant's argument that the lack of saliva on another swab and the absence of spermatozoa undermined the prosecution's case had any merit.

The Court of Appeal found that the evidence provided by the forensic scientist, Ms Khristine Bentley, who testified that she found human saliva on the swab taken from the base of the boy's penis, was strong corroborative evidence. This finding supported the boy's account of the incident and indicated that the act of sucking the penis was likely to have occurred as alleged. The court also noted that the circumstantial evidence, including the father's testimony that he had found the appellant and the boy together in the caravan, pointed strongly to the appellant's guilt. Given these considerations, the Court of Appeal concluded that both the requirements for corroboration were met, and the jury's verdict was justified. Consequently, the appeal against conviction was dismissed.

The final orders of the Court of Appeal were that the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused. This decision upheld the original conviction and sentence imposed on the appellant, affirming that the evidence was sufficient and corroborated to support the jury's finding of guilt.

Orders