R v G

[1992] QCA 297

COURT OF APPEAL  [1992] QCA 297

COURT: SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE, McPHERSON and PINCUS JJA

CA No 324 of 1991

Heard: 1 and 5 May 1992

Delivered: 24 July 1992

THE QUEEN

v

G

DATE 24:07:1992

CWDS: Verdict ‑ unsafe and unsatisfactory ‑ circumstantial evidence ‑ opportunity ‑ S v The Queen (1989) 168 CLR 266 ‑ whether evidence revealed more than one offence during each period specified in the indictment ‑ whether the appellant was embarrassed ‑ whether latent ambiguity in the indictment

JUDGE1: JUDGMENT OF THE COURT

The appellant appeals against his conviction and sentence.  He was found guilty after trial on both counts in the indictment presented against him.

The first count charged that between 20 November, 1990 and 25 November, 1990 he unlawfully and indecently dealt with a child under the age of twelve years, T.  That count originally stated her age as being under ten years but the count was, without objection, amended during the hearing.  The count further alleged that the child was under the care of the appellant at the relevant time.

The second count alleged that between the same dates as specified in the first count the appellant unlawfully assaulted the child thereby doing her bodily harm.

The child T was in fact only some fourteen months old at the time to which the counts referred.  Her mother, Margaret, worked as a prostitute and both in November of 1990 and at the time of the trial she was living with the appellant.  The 20th of November was a Tuesday in 1990 and the 25th of that month was a Sunday.  On that Sunday, in the early part of the afternoon, the child was taken to hospital by her mother and examined by medical practitioners who were later called to give evidence at the trial.  In the course of police investigations the appellant was interviewed but no relevant admissions were forthcoming from him.  At the trial, no evidence was called for the defence.

The Crown case against the appellant was a circumstantial one and particulars were supplied at the commencement of the trial.  Counsel appearing for the Crown described the case as resting on the nature and extent of the injuries which the Crown was in a position to prove.  The particulars supplied were based on the injuries suffered and the access had by the appellant to the child at relevant times.  They were accepted as sufficient by defence counsel and the trial proceeded accordingly.

The child had suffered multiple injuries which were observed during the examination at the hospital on Sunday, 25 November.  The allegation was that all of them had been inflicted within twenty‑four to forty‑eight hours of the time of examination commencing at about 2.30 pm except for one larger bruise at the back of the head which was said to have been inflicted at an earlier time.

Dr Howard and a paediatrician, Dr Heazlewood, two of the Crown witnesses, had both examined the child on that Sunday afternoon.  They were in substantial agreement as to the injuries they observed and the time at which they were likely to have been inflicted.  There was bruising in the following areas suffered within twenty‑four to forty‑eight hours of the time of examination: the back of the head, over the temple, near the eyes, the back of both eyes, the top of the eyelid, the forehead, the centre of the stomach area, around the vulva, on the inside of the thigh above the knee, just inside the vagina and in the area of the urethra, around the bottom lip of the mouth and under the top lip and in the arch of the palate.  Blunt object trauma was said to be the probable cause of these injuries.  There was also a recent small cut just inside the vagina.

Both medical witnesses were of the opinion that the injuries around the area of the child's genitals, including the perineum, could have been caused by some rubbing action by a hand or by a penis.  Dr Howard appeared to admit the possibility that the bruising around the vulva may have been caused by blows struck with the hand several times but Dr Heazlewood was of the opinion that striking in the genital area, as opposed to rubbing or abrasion, was not a likely cause.

The injury inside the mouth was described as consistent with having been caused by the insertion of a penis or by two fingers.

The older injury at the back of the head was on the left side and had its origin in the period of two to ten days before the time of examination according to Dr Howard and two to four days according to Dr Heazlewood.  Both witnesses appeared to accept that that injury could have resulted from a fall or a blow.

The child also had a green stick fracture of her arm consistent with the results of a fall.

On examination, a single head hair was discovered in the child's genital area.  This was consistent with the hair of the appellant, although it was not, in any specific way, able to be attributed to him.

The grounds taken in a notice of appeal were three in number but in their effect overlapped.  The broadest of them alleged that the verdict was unsafe and unsatisfactory.  This involves the Court in undertaking its own examination of the evidence before coming to its decision upon that ground: see Morris v The Queen (1987) 163 CLR 454. Some further outline will now be given.

The child's mother, Margaret, although working for an escort agency, did not bring her clients back to the home unit in suburban Cairns where she then lived with the appellant.  She was still living with him at the time of the trial, although at a different address.  She had two children, T and her sister, A aged two and a half years.  Because of the medical evidence, including the opinions as to the likely time when the injuries were suffered, it was apparently not considered necessary to investigate the movements of the mother, the appellant and other persons having access to T beyond a period much before Sunday, 25 November, 1990.  It is obvious that the period within twenty‑four and forty‑eight hours before the time of the medical examination is most important.

The child's mother said that her normal working hours were 7.00 pm to 5.00 am.  She was able to say that the appellant had looked after T in her absence from home on both the Thursday and Friday nights as well as for a couple of hours on the next day, Saturday, 24 November.  On those occasions he was alone with the two children.

On Saturday, 24 November from 5.00 or 6.00 pm until 8.00 pm the appellant had looked after the two small girls and also a male child, the son of a friend, Marilyn.  Margaret had been out during this time and returned at about 8.00 pm.  A couple of hours later she, the appellant and another friend, Carolyn, went out together.  Margaret and the appellant did not return home until 3.00 am or a little later.  During this period on Saturday night in the absence of both Margaret and the appellant, Marilyn baby‑sat the three children.  She had been joined by her boyfriend, Peter, from about 1.30 am until, as she said, the mother and the appellant returned home at about 3.45 am.  Margaret said that when she returned home on Sunday morning Peter was asleep on a couch in the living room.  The unit contained two bedrooms in which the children had been distributed.

Margaret said that on the Friday night she went out to work at about 10.00 pm, leaving T, A and Marilyn’s child there all in the care of the appellant.  A and the young boy had been asleep in the bed in the main bedroom and T was asleep in a cot in the other room.  Margaret said she came home at 5.00 am on the Saturday morning.  The appellant had telephoned her twice during the night at her place of work and on one of those occasions said that he wanted her to come home to have sex with him.  She said that when she did return home at about 5.00 am the appellant was asleep in the bed in the main bedroom.

On the Thursday night the appellant had once again looked after the three children when Margaret went to work at 7.00 pm.  She believes that she returned home at about 3.00 or 4.00 am on Friday morning.  She saw no one else there on that night and the appellant was asleep in bed when she returned home.  The two children were in their respective cots on that occasion.

Margaret gave an account of the appellant's presence in her unit on earlier nights in that week.  She thought he stayed over in her house on the Monday or Tuesday but that he had not done so on the Wednesday.

Prior to the Thursday night Margaret said that she saw only one bruise on T and it was on the side of her head.  She said there had been a lump there about three or four days before the child was taken to hospital.  This may be taken as a reference to the older bruise of which the two medical practitioners spoke.  On the Saturday morning the mother said that she saw no injuries on T but there was a blood stain on the sheet of the double bed in the main bedroom on the side where the appellant usually slept.  She said she washed the sheets twice a week.

On the Sunday morning the mother said that when she bathed T she saw bruising on the inside of her leg but saw no other marks upon her body.  She said that she bathed T three times altogether on the Sunday before taking her to a hospital and that she ordinarily bathed her two or three times a day.  She said the whole household used towels together indiscriminately when they bathed.  On the Sunday morning before the child was taken to hospital she said the appellant had at one point run into the room where the child was and said she had fallen off the bed.

Margaret said it was about 2.00 pm when she took T to the hospital on Sunday, 25 November.  She said that she noticed some bruising on the child's stomach before leaving for the hospital.  In cross‑examination it was put to her that she had caused the injuries found on the child and she had beaten the child but she denied it.  She did concede that she had seen a bruise on the inner thigh of the child before she went to hospital but she did not admit to seeing any of the other very extensive areas of bruising and injury of which the medical practitioners spoke of.  These are quite evident in the photographs which became exhibits in the case.

Carolyn gave evidence.  She spoke of having seen a very old bruise under T’s left eye on Thursday, 22 November and a lump on the side of her head at the same time.  She broadly confirmed the version of the movements of the mother and the appellant on the Saturday evening and night that had been given by the mother.

Marilyn went to see T in hospital on Monday, 26 November and said she then had bruises all over her.  On the Saturday before she said she noticed a bump on her head and perhaps a bruise on her eye.  She conceded that she may have seen the lump on her head on the Friday.  Marilyn baby‑sat on the Saturday night and she was alone in the unit with the children from about 9.30 pm until her friend, Peter, joined her at about 1.30 am.  She said he watched television and then went to sleep on the lounge until the appellant and Margaret returned at about 3.45 am.  She said that she too went to sleep that night at some time shortly before the two returned.

Peter gave evidence and he confirmed that he went to the unit at 1.30 am and said that he was asleep when Margaret and the appellant returned home at about 3.30.  He had watched television but had not gone into the bedroom.

There was also some forensic evidence which would have assisted the jury in its deliberations.  Mr Freney, a forensic scientist, undertook an examination of the flat.  He found blood stains on the mattress of the double bed in the main bedroom and on the sheet in that room.  He was unable to date these stains except very approximately saying that they were "fairly fresh", although he conceded that they might have been even older than three weeks.  Tests performed by him on the blood showed that it was of a type found on average in one person out of 877 members of the population and also that it conformed with T’s blood type but not with that of the appellant.

Margaret’s evidence had been that when she noticed the stain on the sheet for the first time on Saturday morning she mentioned it to the appellant and he said that it had been there for quite some time.  The effect of her evidence was that she did not accept that statement of the appellant.  Mr Freney examined the head hair found in the region of the child's vagina and made a number of other findings which it is unnecessary to mention as they do not have the same cogency for the Crown case.

In his summing‑up to the jury the learned trial judge, accurately enough in view of the medical evidence, suggested likely times when they might conclude that the significant injuries were suffered.  He described the main contention of the Crown as being that the offences occurred on the Friday night.  He added that the jury should consider the Thursday night as a possibility also.  The count alleging indecent dealing, he instructed the jury, was to be considered on the basis of the injuries suffered in the genital area and possibly also the mouth depending upon the point of view they took.  He referred to a defence submission that the injuries may have been caused by the actions of a person or persons other than the appellant, perhaps either the mother or someone else.  He instructed the jury that it would have to exclude this possibility if it were to find the appellant guilty.

It can be seen that on the first count, the indecent dealing, the strength of the Crown case lay in the location of the injuries.  The part of the body, where certain of them were suffered was important.  The injuries on the lower stomach, inner thighs and general genital area on the medical evidence strongly pointed to an extensive interference of a nature which could be described as indecent.  The injury to the mouth would not necessarily qualify as a sign of indecent interference.  Unless the injury there were caused by the insertion of a penis it would not in any obvious way be able to be identified as the result of an indecent action and nothing strongly pointed to the insertion of a penis as being the cause.  There were also on the medical evidence other possible causes of the injury to the mouth; the insertion of fingers or even a toy of some kind, there being evidence that the child was teething.  The presence of the head hair in the genital area could not be described as convincing, particularly in view of the household habit of sharing towels indiscriminately.  The blood stains on the sheet and mattress consistent with the blood group of T give some support to the time frame suggested by the Crown if credit is to be given to the mother's evidence suggesting that the first appearance of the stain on the sheet may have been not long before Saturday morning.  The same evidence gives some support to the proposition that the appellant may have been the offender if the blood came from the laceration in T’s genital area and was found in the bed.  This would tend to exclude the possibility that the culprit may have been some outsider who gained entry to the flat.

In proving its case against the appellant as the agency of the injuries, the Crown had to prove that the appellant had the opportunity and it also had to exclude the possibility that the injuries were caused by others.  The Crown could be regarded as having a strong case on the first aspect and there was also a weighty case on the second aspect since the Crown called each of the other persons who, in the significant period leading up to the Sunday, might be thought to have had an opportunity through being present in the flat.  It was clearly open to the jury to decide that all of those persons were telling the truth when they gave an account of their actions in a way which could be regarded as excluding the possibility that they were responsible.  Nevertheless, on the first count, just as much as on the second, it remained a possibility on the Crown case that the relevant injuries resulted from a multiplicity of actions which may to some extent have been separated in time.  The importance of this will be considered shortly.

The injuries relied on by the Crown to prove the second count were hardly likely to have been simply the result of lawful acts of discipline in the case of such a young child.  Further, the medical evidence tended to exclude the possibility that some of the injuries were caused by a fall or falls and the number of the injury sites pointed away from this explanation because of the likelihood that there would have to have been multiple falls to explain even those of the injuries which could have been caused in that way.

A review of the transcript thus shows that there was substantial evidence that an assault or assaults and a dealing or dealings of an indecent kind had occurred and that the appellant was the perpetrator in each case.  Apart from a matter to which it will be necessary to turn, this was not a case where a reasonable jury could not conclude beyond reasonable doubt that the appellant was guilty.  There is nothing unsafe in a conclusion attributing to the appellant responsibility for the offences as charged and particularised.

The further matter to which reference has been made must now be considered although it related to a matter not raised below.  It was suggested on appeal that in view of the form of the counts the Crown was obliged to prove and, in view of the nature of the evidence, had failed to prove that a single assault occurred and a single indecent dealing took place.  It was submitted that the Crown was not able to show that the signs observed by the medical witnesses and some of the other witnesses were not the result of discontinuous episodes.  If this was a requirement then it was claimed the Crown had not proved its case as charged.

No objection was taken below to the particulars provided by the Crown in the course of the hearing and no objection was there taken to the nature of the Crown case.  No suggestion was made that the Crown was obliged to elect and nominate single injuries or signs on which it relied in the case of each separate count.  Notwithstanding the absence of objection below it was contended on appeal that the appellant was unfairly treated in his trial by being obliged to meet a generalised case on each charge which did not distinguish between different injuries and hence possibly different actions.  The cases of S v The Queen (1989) 168 CLR 266 and R v Morrow and Flynn [1991] 2 Qd R 309 at 312 were referred to.

The first thing to be said is that in this case there was no element of unfairness against the appellant in the way in which the charges were laid and particularised or in the way that the Crown case was presented against him.  The defence simply put the Crown to proof of the appellant's involvement and from this point of view it would have been the same if the injuries had been more restricted, as if, for example, on the indecent dealing count the case was constituted by a single injury in the genital area.  In requiring the Crown to prove that he was responsible, the appellant was not placed in a position of embarrassment by the form of the charge or the nature of the evidence.  This absence of embarrassment for the defence serves to distinguish the present situation from such cases as S v The Queen (supra) and Johnson v Miller (1937) 59 CLR 467. Also, in contradistinction to those two cases, this is not a situation where there is any indication whatsoever on the evidence that more than one offence was necessarily comprehended under each count. The fact remains, however, that for all the Crown could prove, more than one indecent dealing and more than one assault may (but not must) have occurred within the period particularised. Is there because of this an objection in point of principle so that the proceeding has to be regarded as fundamentally flawed and not sustainable even with the application of the proviso?

It is said that principle is contravened not only when two (or more) separate offences are alleged under a single count but also if that is possibly the case.  It is submitted that there is a parallel with the latent ambiguity identified in Johnson v Miller (supra).

It is clear that only one offence may properly be specified under one count: R v Morrow and Flynn (supra), Johnson v Miller (supra) and s 567(2) of the Criminal Code.  The question raised in the present case is whether, accepting that only one completed criminal action can be charged as constituting an offence, some continuing criminal activity can be regarded as constituting a single criminal offence.  Must a continuing criminal action be dissected into all of the constituent criminal acts (and hence offences) which comprise it and, in that case, must all of those offences be charged separately?  This kind of problem has been encountered before and it is appropriate to remember the language of Lord Widgery in Jemmison v Priddle [1972] 1 QB 489 at 495: "It is legitimate to charge in a single charge one activity even though that activity may involve more than one act."

This was said in a case where the prosecution evidence appeared to establish definitely that more than one criminal action was perpetrated in the course of some continuing activity.  In this context Lord Morris, in R v Merriman [1973] AC 584 at 593, also examined what an offence might consist of. It may be necessary to confront the question how much criminal activity of a single kind can be accumulated under the banner of a single offence. When assault is charged must each blow struck be made the subject of a separate count and must each stabbing and act of pursuit be separately specified in an attempted murder case as Connolly J asked in delivering the reasons of the Court in R v Morrow and Flynn (supra) at 312? What the law requires will depend on the circumstances and on a common sense judgment much influenced by the requirements of justice which must always be taken into account.

Here there may have been some continuing course of behaviour pursued by the appellant without interruption in both the indecent activity and the assault or, alternatively, the criminal conduct charged may have been fragmented but in each case the jury must have been satisfied that it occurred within the span of time which the Crown case contended for.  The conclusion should be reached that in each case the actions alleged sufficiently amounted to an activity which could legitimately be made the subject of a single count.  The case could not sensibly have been charged or particularised in any other fashion and the accused was not embarrassed in any way in the conduct of his defence.  This sufficiently answers any claim that there was an objection in principle.  Boundaries could not sensibly have been drawn distinguishing areas of injury on the lower part of the child's body since those areas were contiguous and merged into one another and it would not have been possible to allocate any of these signs of alleged indecent activity to different points of time within the relevant time period of twenty‑four to forty‑eight hours overall.  Particular bruises could perhaps have been nominated to constitute the subject of the general assault count, yet in this case, as on the other count, there is no reason to think that even if objection had been taken during the trial the remainder of the evidence comprehended by the particulars under each count would have been excluded in proof of the offences charged.  The defence was understandably content to meet the Crown case without objection and hence there was no call made for the Crown to elect and restrict the ambit of its charges.  Even if a call had been made for the Crown to elect it should not be concluded that it would have been obliged to do so and it should not be concluded that any error of principle occurred.  If these conclusions are not correct then it still would have been a case for the application of the proviso.

ORDER: The appeal against conviction should be dismissed.

Representation:

Counsel for the appellant: T Carmody
Solicitors for the appellant: Legal Aid Office (Qld)
Counsel for the respondent: P Rutledge
Solicitors for the respondent: Department of Prosecutions