R v G

[1996] QCA 339

Court of Appeal  [1996] QCA 339

FITZGERALD P

DAVIES JA
de JERSEY J

CA No 273 of 1996

THE QUEEN

v.

G  Appellant

BRISBANE

DATE 27/08/96

JUDGMENT

DAVIES J:  The appellant was convicted in the District Court on 30 May this year on three counts of rape and two of indecent assault.  He was sentenced on each of the counts of rape to 10 years imprisonment and on each of the indecent assault counts to five years imprisonment.  All sentences were to be served concurrently.

He appeals against all of his convictions on the grounds that the verdicts were unsafe and unsatisfactory, against the weight of the evidence and also that the complainant's evidence was uncorroborated although the last of these, at least, was not pursued in oral argument today.

The offences were alleged to have occurred between December 1985 and January 1989.  By the time of trial which was in May this year, the complainant was 23 years of age.  She was between 13 and 16 years of age at the time of the alleged commission of the offences.  The appellant is her step-father.

The complainant's evidence was uncorroborated and the case turned on a conflict between her evidence and that of the appellant who denied any sexual misbehaviour.  She gave evidence of a continuing sexual relationship commencing when she was very young and continuing, as I have said, until she was 16.  The events charged were the ones which she could recall during this period with particularity.

The appellant's main argument, both in his written outline and in oral argument today, related to count 5, one of the counts of indecent assault.  On that count, the complainant's evidence was contradicted not only by the appellant but also in part by his wife who was also, of course, the complainant's mother.  On that day, the complainant had stomach pains and it was common ground that the appellant took her to hospital where an emergency appendectomy was performed.

The complainant's evidence was that although it had been arranged before her mother's departure to go to bingo with some other women that the appellant would take her to hospital, her mother actually left the house with the other women before that occurred and that after they left, the appellant took her upstairs, rubbed his penis on her vagina and then took her to hospital.  The mother's evidence, and also the appellant's, was that the appellant left to take the complainant to hospital before she and the others left for bingo.

It was submitted for the appellant that the hospital records showing the time of arrival at the hospital tended to support the evidence of the appellant and his wife and to contradict that of the complainant.  Those records show that the complainant was first seen by a doctor at 12.50 p.m. on that day.  However the complainant had said that the appellant's wife left at lunch time and she was generally unable to be specific as to times so that in my view the hospital records were not necessarily inconsistent with her evidence.  Alternatively, the jury could have concluded that the complainant was mistaken as to the times on that day but nevertheless have accepted her evidence as to the indecent assault on that day and to have rejected the evidence of the appellant and his wife.

In the end, in my view, the jury were left with a conflict of evidence between the complainant on the one hand and the appellant and his wife on the other.  In resolving that, the jury had the advantage, which this Court lacks, of observing each of them give evidence and from that observation forming a view as to their credibility.  There is no basis, in my view, for concluding that the jury should have had a reasonable doubt on that question.

Other points were raised by the appellant none of them, in my view, compelling.  It was pointed out in a written outline, though not advanced further in oral argument, that the complainant had admitted to committing perjury in the committal proceedings as to the frequency with which she had taken marijuana.  Although perjury is a serious offence, the jury was entitled to consider her failure to be truthful about how many times she had smoked marijuana did not affect her credibility on the central issue in this case.  She gave an explanation for her lies which the jury was entitled to accept.

There were other variations in the complainant's evidence, some of which were relied on but none of which, in my view, were substantial.  The one which was pursued before us in oral argument was as to whether particular words were used by the appellant on one or another occasion upon which he raped the complainant.  In my view, having regard to the time which has elapsed between the events which occurred and the time when she gave evidence, this was of no great significance.

In those circumstances, I could not be satisfied the jury verdict was unsafe and I would dismiss the appeal.

THE PRESIDENT:  I agree.

de JERSEY J:  I agree.

THE PRESIDENT:  The appeal is dismissed.

-----