R v H

[1994] QCA 434

IN THE COURT OF APPEAL  [1994] QCA 434

SUPREME COURT OF QUEENSLAND

C.A. No. 306 of 1994

Brisbane

Before     Fitzgerald P.
          McPherson J.A.
          Pincus J.A.

[R. v. H]

T H E     Q U E E N

v.

H
  (Appellant)

Fitzgerald P.

McPherson J.A.

Pincus J.A.

Judgment delivered 27/10/94

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDSCRIMINAL LAW - UNLAWFUL SEXUAL RELATIONSHIP - Father subjected son to anal and oral intercourse - Certain acts committed while pornographic videos watched - Whether admission of video case displaying naked men prejudicial - Whether verdicts unsafe and unsatisfactory due to inconsistencies between testimony and written statement - No inconsistencies within testimony itself.

Counsel:D.J. Richards for the appellant

M. Byrne Q.C. for the Crown

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the Crown

Hearing Date:   20 October 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 27th day of October 1994

The appellant was convicted of one count of maintaining an unlawful sexual relationship with a circumstance of aggravation (count 1), and two counts of unlawful anal intercourse with a circumstance of aggravation (counts 2 and 3).  He was acquitted of another two counts of unlawful anal intercourse (counts 4 and 7).  The learned trial judge also directed verdicts of not guilty on another such count (count 5) and on a further count of permitting unlawful anal intercourse (count 6).
     The complainant is the appellant's son, which was the circumstance of aggravation alleged.  Having been born in 1977, he was 17 years old at the time of trial. He had lived in a house alone with the appellant from a very early age, and he claimed that the appellant had first begun to fondle his penis when he was only 5 years old.  However, the allegation in count 1 related to a period of only four years between 1989 and 1993, after which the complainant left home.  It relied on the matters giving rise to the allegations in counts 2, 3, and 4, and also on some other incidents of which evidence was given at the trial.  They included an occasion on which acts of oral sex were said to have taken place; and another occasion when the appellant was said to have performed acts of oral and possibly also anal sex on the complainant in conjunction with the screening of a foreign language sex video.
     There are two grounds of appeal.  The first is that the trial judge was wrong in deciding to admit in evidence two video cassettes and some clothing.  It was submitted that their prejudicial effect outweighed their probative value.  The clothing was female attire comprising bra, panties and stockings.  The complainant said in evidence that on one occasion the appellant made him dress up in female clothing, which he had previously seen in a cupboard in his father's bedroom.  The clothing tendered at the trial was located in the course of a police search conducted after the complaint was made.  Some of it was found in a cupboard in the bedroom, and some in a steel box in the cupboard.
     The clothing was plainly admissible in evidence.  The objection to it was directed not so much to its admissibility but rather to the fact that it should have been described orally at the trial instead of being admitted and presented to the jury in specie.  The trial judge was, however, correct in deciding as he did that production to the jury of the items themselves was scarcely more prejudicial than describing them.  The items themselves were, of course, the best evidence of the character of the clothing.  In the end, the objection was not maintained on the appeal.
     As regards the videos, the complainant gave evidence of the occasion when the appellant carried out indecent acts on him while they were watching a foreign film.  At the trial it was referred to as a French video, and it was of a pornographic and homosexual character.  The two video cassettes were also located in the steel box in the course of the search of the appellant's bedroom.  The complainant was able to describe to the police some of the scenes on one or both of the videos, which the police officer, after viewing it himself, said he was able to identify as matching scenes on one of the videos located in the steel box.
     The jury were not asked to view either of the videos; but the cassettes were, over objection by counsel for the defence, admitted in evidence.  One is entitled "Brother Load".  The cover or case has scenes presumably from the film itself.  None of those scenes is explicit.  On the spine of the video case is a depiction of two naked young men embracing.  It too leaves something to inference or imagination.  On appeal it was conceded by Ms. Richards for the appellant that the video cassettes were capable of being relevant to issues at the trial.  They, or the scene on the spine of "Brother Load", were very far from being inflammatory, or of such a character as to require their exclusion from evidence in order to ensure a fair trial of the proceedings.
     In summing up, the learned trial judge directed the jury that there was no evidence capable of amounting to corroboration of the complainant's testimony of the acts committed by the appellant.  Even so, the videos and the clothing went some way to negativing a suggestion that the complainant's account of what took place was complete concoction : cf. R. v. Ward (C.A. 54 of 1993).  The appellant himself did not take the witness stand, and cross‑examination of the complainant was in the main directed more to bringing out supposed inconsistencies in the complainant's evidence than to suggesting any compelling motive for fabrication.
     It was the alleged inconsistencies that formed the basis of the second ground of appeal, which was that the verdicts were unsafe and unsatisfactory.  Count 4 on which a verdict of not guilty was returned was one of alleged oral sex followed by anal sex.  There was a discrepancy between the evidence given by the complainant at the trial, which was that the appellant had anal sex with him downstairs in the lounge; and the contents of his written statement, in which, as the complainant acknowledged in cross-examination, he had said that the act of anal penetration took place upstairs in his bedroom.  This may explain why the jury acquitted on that count; but the difference is not so critical as to require the further conclusion that the whole of his evidence was unreliable.
     A number of such differences are collected in the appellant's written outlines of argument, and some of them were examined in detail in the submissions before us.  It is a fair to say that none is so grave as to exclude the explanation that they resulted from the passing of time and recollection rather than from any want of truthfulness on the part of the witness himself.  There was evidence from the complainant that incidents like those the subject of the indictment had taken place once or twice every month over a period perhaps as long as 12 years.  In these circumstances, it is not surprising that the complainant was not altogether precise about details of dates, times, locations or sequences, nor that it was not always possible for him in each instance to distinguish accurately between the details of one incident and another.
     As it happens, there are no direct inconsistencies in his testimony at the trial.  What was relied on to support this ground of appeal were comparatively slight differences between his evidence at the trial and what he had said at the committal proceedings, or what appeared in his statement to the police, or in the earlier notes of events which he wrote out at the request of the police.  In most if not all of these instances, the discrepancies alluded to amounted to no more than that something was mentioned in one place and not in the other; or they may be explained by the fact that he was asked a specific question on one occasion but not on another.
     Whether taken collectively or in detail, there is not enough in the matters identified by Ms. Richards on the appeal to raise real concerns about either the veracity or the general accuracy of the complainant's evidence; or doubts about the verdicts reached at the trial.  There is no reason for suspecting that in the case of this appellant a miscarriage of justice has occurred.
     The appeal against conviction must be dismissed.