R v H

[1996] QCA 80

[1996] QCA 80

COURT OF APPEAL

McPHERSON JA
DAVIES JA
PINCUS JA

CA No 511 of 1995

THE QUEEN

v

H  Appellant/Applicant

BRISBANE

DATE 01/03/96

JUDGMENT

McPHERSON JA:  The appellant was convicted in the District Court at Innisfail after a trial on an indictment charging one count of indecent dealing with a girl under the age of 12 years who was, at the relevant time, in the care of the appellant.  He was sentenced to nine months imprisonment.  He now appeals against his conviction and also seeks leave to appeal against the sentence.

The complainant girl was at the time aged nine years.  She was the daughter of a farmer who owned a banana and sugar cane farm on which the appellant was employed as a labourer.  The appellant lived in a caravan on the property with his wife and two children.  It was the practice for the complainant to stay with the appellant and his family from time to time when her father was away from the farm.  On the occasion in question, which was the night of 6 May 1995, she stayed at the caravan of the appellant while her father went to Cairns.  When he returned from Cairns the next day she complained to him that the appellant had touched her the previous night.

The material out of which the charge arises was contained in an interview with the police. It was admitted pursuant to section 93A of the Evidence Act.  The girl said that she was lying on a bed in the caravan that evening and the appellant was next to her.  She claimed he first tickled her on the breasts under her tracksuit top.  She laughed and the appellant told her to be quiet.  He then put his hand on her vagina outside her pants and then put his hand inside her pants on her vagina.  The complainant told him to stop.  He removed his hand and left the caravan.

The next day she told the wife of the appellant, who suggested that perhaps she had had a dream.  The complainant then spoke to the appellant about it, who apologised for touching her.  After the father of the complainant had returned and had been told what had happened, he approached the appellant and, without giving any particular reason, ordered the appellant to leave the property.  At that the appellant responded by saying "I know it's a serious thing, and all I can do is to apologise for it."

The wife of the appellant gave evidence to the effect that she was awake and lying on the other end of the bed on which the appellant and the complainant were at the time.  She said she did not see or hear anything, but saw her husband turn off the light and come to bed.  She confirmed that the complainant had, the next day, told her of what had happened.

The appeal so far as the conviction is concerned contains a number of specified grounds.  So far as grounds 1 and 2 are concerned they complain that, after the trial had commenced one of the jurors interrupted to say that, having heard the first witness give evidence and having seen that person, the juror realised that she knew the wife of the appellant but had not initially recognised her name.

At the request of the defence counsel the whole of the jury was then discharged.  Counsel was not prepared to agree that the trial should proceed before only 11 jurors.

The trial began again the following day before a fresh jury, which was drawn from the same jury panel as the first jury.  The ground of complaint that is made in the notice of appeal is that the jury should have been drawn from a fresh jury panel.  No doubt that might have been difficult at Innisfail; but, whether difficult or not, no argument to that effect was put to the Judge at the trial and no objection was made by counsel to the effect that is now contained in the notice of appeal.  It does not seem to be possible, on any view of the matter, to regard it as a consideration or factor that goes to the validity of the verdict or to the propriety of the trial.  The failure of counsel to make an objection at the time is perhaps the clearest indication that no one at the time had any notion that there would be any detriment to the appellant, or accused as he then was, if jurors who had not heard the beginning of the first trial were sworn to hear the second.  In my opinion there is no substance in that ground.

Another of the grounds that is advanced before us is that the Judge, in the course of the proceedings after the complainant had given her evidence, intervened in a fashion which is described in the outlines of argument as having the effect, so it is said, of confirming the statement of the complainant contained in the record of interview which, as I have said, was admitted at the trial under section 93A of the Evidence Act.  The passage in the evidence with which we are concerned is at page 15 lines 10 to 30:

"HIS HONOUR:  S, when you were talking to Detective Dowie and telling him what happened?-- Yes.

Were you careful to tell the truth?-- I did make one mistake in the video.

What was that?-- He didn't say dream-girl or anything.  He said, `I love you' but he did not say dream-girl.

You've listened to it carefully.  Was everything else you told the truth that you told Detective Dowie that you can remember?-- There was something else in there.

Was there?  Just try and think about it for a minute?-- Oh, yeah, it was the Hogs Breath shirt thing.

Yes, you've told us you made a mistake about the Hogs Breath shirt.  But everything else was true?-- Yes."

In practical terms what the Judge did was to ask the complainant if she was telling the truth.  She affirmed that she had corrected two statements in the record of the interview which had taken place before the trial.  It cannot be too strongly stressed that Judges in conducting trials should not do or say anything that might lead an accused person to think that the Judge is taking sides in the matter; but His Honour's conduct in this instance fell well short of justifying any such complaint here.  No objection was taken to his doing what he did, and the complainant had in fact previously affirmed her statement in the exhibit to which I have referred.  I suppose the practical result of his intervention may be said to have had the consequence that she corrected in front of the jury two statements which she had previously made.  To that extent it might have appeared to the jury that she was a witness of truth.  Again, I think there is no substance in that ground of appeal.

The next ground of appeal with which we are concerned arises from the fact that the appellant himself did not give evidence.  That of course meant that the complainant girl's statement and her evidence at the trial were not contradicted.  In the course of giving directions on this point the Judge made some comment to that effect after he had given the usual explanation as to the rights of the accused in a matter like this.

He did use the expression "failure to give evidence" but, taken in context, nothing that he said can be considered to have contravened the rule that it must be made clear to the jury that an accused person carries no onus of proof and that he is not obliged to give evidence but has the option of doing so or not.

The final ground of appeal essentially is that, when all these matters are considered, there was evidence of bias on the part of the Judge directed against the accused.  It should be said at once that, as has already appeared, several of the specific grounds which have collected together under this heading relate to occasions when the Judge was dealing with questions in the absence of the jury, who could not therefore have been affected by anything that he said or did, or by any impression that they formed about his conduct of the trial before them.

It follows, of course, that, so far as I can see, there is no basis for any suggestion that a reasonable member of the public would have thought that he was biased against the accused.  The case is one in which it is not possible to say that anything said or done by the Judge could have influenced the jury in reaching their verdict which, I may add, seems in all the circumstances to have been one that was well justified by the evidence.

Turning from the question of conviction to that of sentence, the sentence imposed by the Judge was one of nine months imprisonment.  The applicant is a man of 42 years who was born on 13 May 1953.  He is married and was at the time living with his wife and two young children.  The incident itself impresses me as having been very much a spur-of-the-moment action which was obviously ill-advised, but gives rise to no inference that the applicant is a person disposed to commit offence of this or any other kind.  Indeed, he has an unblemished previous record and, from everything we know, this is the only occasion on which he has erred.

It may be that some other Judges would have adopted the option of looking for some alternative form of punishment for the applicant; but, when previous decisions of this Court are considered and regard is had to the seriousness with which the community views these offences, it is, in my view, not possible to say that the sentence imposed in this case went beyond the exercise of a valid sentencing discretion.

In those circumstances I am, not without regret, unable to conclude that the sentence is manifestly excessive or otherwise such as would enable this Court to interfere with it according to the principles on which we ordinarily act in all cases of appeals against sentence.

I would accordingly dismiss the appeal, and refuse and dismiss the application for leave to appeal against sentence.

DAVIES JA:  I agree.

PINCUS JA:  I agree.

McPHERSON JA:  The order of the Court is as I have stated it.  The appeal is dismissed.  The application for leave to appeal against sentence is refused.