R v H

[1997] QCA 489

[1997] QCA 489

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MUIR J

CA No 359 of 1997

THE QUEEN

v.

H  Appellant

BRISBANE

DATE 07/11/97

JUDGMENT

DAVIES JA:  I will ask Mr Justice Muir to deliver his reasons first.

MUIR J:  The appellant was convicted of two counts of indecent assault with circumstances of aggravation; one matter involving fellatio and the other involving sodomy; one count of indecent assault; one count of procuring gross indecency with a circumstance of aggravation, that is, fellatio; procuring gross indecency, in that case, masturbation.

He appeals against convictions on grounds that the learned trial Judge misdirected the jury on the use that could be made of prior inconsistent statements and that the verdict was unsafe and unsound.  He appeals against sentence on the grounds that the sentence imposed was manifestly excessive.  The sentences imposed were as follows and in reference to these counts, the numbering is a little different to those which I have previously given.  Referring to the record, at page 213, on the first count, a sentence of three months imprisonment; on counts two and three, two years imprisonment; on count four, three years imprisonment; and on count five, the count involving anal intercourse, six years imprisonment.  The terms of imprisonment were ordered to be concurrent.

It is appropriate to first consider the appeal against conviction.

The substance of the argument advanced by the appellant was that the verdict was unsafe because of conflicts in the evidence of the complainant, and in particular, discrepancies between evidence given on trial by the complainant and evidence given in the course of committal.

The appellant was interviewed by police for about an hour on the morning of 15 April 1997.  The complainant's statement, containing allegations of sexual misconduct, were put to the appellant in detail.  The appellant denied any sexual dealings between himself and the complainant.  He said, at one stage in the course of that interview, "It just - it actually makes me feel sick thinking about it - listening to you reading about it."  He made other statements to similar effect.

After conclusion of the interview, he spoke to a police officer and consequent on that discussion, another interview took place.  In the course of that interview, he admitted to the following matters: masturbating the complainant and being masturbated by him; sodomising the complainant; initiating the sexual contact in each case; striking the complainant in the case of the first sexual contact between the two; that his conduct was such that the complainant may have thought himself threatened; that the complainant, from time to time, said words and behaved in a way inconsistent with the giving of consent by the complainant to sexual contact with the appellant.

In relation to the episode of anal intercourse, the following exchange occurred in the course of the second interview: "I just asked him if I could do it."  "And what did he say?"  "Well, he says, as long as it didn't take forever."  "Did that sound like a person who was keen to or was willing to do something like this?"  "I don't know.  I didn't think about it."  "Do you recall him saying, 'No," he didn't want to?"  "No, he just says, as long as it didn't take forever."  He also conceded undoing the complainant's trousers.

I should mention that the complainant and the appellant had been friends for three years.  At the time of the subject offences, they were sharing a house.  The complainant had an intellectual disability, was 19 years of age, and much slighter in build than the appellant.  The appellant was over 30 years of age at the time.  The offences concerned took place over a two and a half week period.

The learned trial Judge, in the course of his summing-up, instructed the jury that, "In order to convict the accused you will need to be satisfied of the reliability and truthfulness of what the complainant has had to say about each of these incidents."  He then went on to give appropriate direction on proof beyond reasonable doubt.  He had earlier drawn attention to the fact that the Crown had made it clear that, as he put it, "The case rests on the shoulders of the complainant."

He directed on the dangers of convicting on the uncorroborated evidence of the complainant in cases of sex offences.  The summing-up was, thus, particularly favourable to the appellant in that regard.

He also directed at length on the two interviews which the appellant had given and gave directions to the jury concerning the dangers of dealing with the lies which the appellant had made and which were manifested in the discrepancies between the two interviews.

The learned trial Judge observed in sentencing the appellant that the complainant was subjected to a very long and searching cross-examination running into something like five hours and I was of the view, and the jury was fairly obviously of the view, that he stood up to cross-examination as only an honest witness can.

The appellant has been able to point to no significant discrepancies in the evidence of the complainant.  It was open to the jury to accept the complainant's evidence.  The appellant took the course of himself not giving evidence.  His second record of interview, which of course, was before the jury, was redolent with inferences of compulsion on his part and lack of consent by the complainant.

For those reasons it seems to me that the appellant has not made out his grounds of appeal and I would dismiss the appeal as to conviction.

The appellant, as I have said, appeals also against sentence.  The appellant subjected a young and vulnerable friend to sexual abuse.  He showed no remorse.  He denied guilt and subjected the complainant to lengthy cross-examination.

The appellant has a fairly extensive criminal history, although it must be said in his favour, that the last conviction was recorded in 1983 and that he had no conviction for sexual offences.  It seems that little violence was actually offered by the appellant, but nevertheless, the complainant was under at least the implicit threat of violence.

The sentences imposed, particularly in relation to the more serious offence involving anal intercourse, are towards the lower end of the range for such offences and hardly reveal an error in the sentencing Judge's discretion.  I would dismiss that appeal also.

DAVIES JA:  I agree.

McPHERSON JA:  I agree.

DAVIES JA:  The appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.

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