R v G

[1994] QCA 497

[1994] QCA 497

COURT OF APPEAL

PINCUS JA

McPHERSON JA
DERRINGTON J

CA No 177 of 1994

THE QUEEN

v.

G  Appellant

BRISBANE

DATE 24/10/94

JUDGMENT

McPHERSON JA:  The appellant was charged in an indictment containing 14 counts alleging various sexual acts committed on a girl aged 12 years, who was the daughter of a woman who was then the de facto wife of the appellant, or at any rate, was associated with him in some such way.  The events occurred between September 1992 and April 1993.  The complainant and her mother evidently came from New Zealand, and after their arrival they lived in a caravan park at Wynnum.  The appellant was also living there, though I think in a separate caravan.

The notice of appeal contains four separate grounds which, we were told by the appellant, were drafted by his solicitor, counsel having advised that there was no appropriate basis for appeal in this case.  The first is that there was no corroboration of the complainant's evidence in respect of most of the counts.  It is correct to say that there was no corroboration on most of the counts, but there was corroboration from the complainant's mother in relation to count 7.  She woke up one night, while sleeping, as she was, with her daughter the complainant, to find the appellant, according to her version of it, having sexual intercourse with her daughter.  It should perhaps be added that the mother had been, as she acknowledged, drinking rather a lot that evening.

Although there was no corroboration with respect to the other counts or matters, there was evidence from an independent witness of a fresh, and it may be persuasive, complaint about the sexual activities of the appellant against the complainant.  It was therefore open to the jury to think that the story was not an entire fabrication, and that there was substance in the complaint that the girl made.

Ground 2 refers to numerous significant inconsistencies in the complainant's evidence.  That appears not to be supported in any way by the material in the record.  Counsel who appeared for the appellant at the trial did not put inconsistencies to the girl, and it does not therefore seem possible to regard the second ground as anything more than a standard sort of ground that is commonly encountered in cases of this kind.

The other two grounds in the notice are concerned respectively with an allegation that the complainant had a motive for fabricating this charge against the appellant, and that parts of her allegations were inherently improbable.  I have read the evidence of the complainant, or a substantial part of her evidence-in-chief, and I do not think there is any substance in the assertion in ground 4 that her allegations are inherently improbable.  So far as motive is concerned, a motive of a kind was suggested to the complainant, namely that she wished to assist her mother who in turn, it was suggested, wished to pay back the appellant for something he had done.

The jury were adequately instructed on the way in which they should approach a case of this kind.  No complaint is made in relation to the Judge's summing up, and in those circumstances I would regard the case as one in which it was a matter for the jury to decide where the truth lay.  In that regard, it may be that they felt they could act with greater confidence on the evidence of the complainant, her mother, and the person to whom the complaint was made, by reason of the fact that no testimony was offered by the appellant himself in rebuttal of these serious allegations.

The only other matter which is not made the subject of a specific ground of appeal, but has been mentioned by the appellant, who appeared before us in person, is that the medical evidence was inconsistent with the allegations made by the complainant.  Again I have read the evidence of the relevant witness.  The substance of his evidence is that the condition of the girl's vagina was such that it was not impossible that penetration had taken place some time before and that her vagina had, in the course of time, resumed its former condition.  It is, of course, not a necessary element of the offence or offences with which this man was charged that there should be a rupture of the hymen, or anything more than penetration of the outer limits of the vagina, in order to constitute the offence.

For my part, I see nothing of substance in the appeal and I would dismiss it.

PINCUS JA:  I agree.

DERRINGTON JA:  I agree.

PINCUS JA:  The order of the Court is appeal dismissed.

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