R v Johnson

[1994] QCA 325

IN THE COURT OF APPEAL  [1994] QCA 325
SUPREME COURT OF
QUEENSLAND  C.A. No. 126 of 1994

Brisbane

[R v. Johnson]

BETWEEN:

THE QUEEN

AND:

WILLIAM DESMOND JOHNSON

(Appellant)

Mr Justice Davies

Mr Justice McPherson

Mr Justice Mackenzie

Judgment delivered 5 September 1994

REASONS FOR JUDGMENT - THE COURT

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:                CRIMINAL LAW - indecent dealing with a child under 16 - child in question residing in appellant's household - whether evidence of another child witness admissible as evidence of unnatural sexual relationship - whether similar evidence of child in question admissible.

COUNSEL:J. Crowley Q.C. and Dwyer for appellant

W. Clark for Crown

SOLICITORS:  Grasso Searles and Romano for appellant

Director of Prosecutions

HEARING DATE:               24 August 1994

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 5 September 1994

The appellant was convicted in the District Court at Kingaroy of three offences of indecently dealing with a young male person.  In each case, it was alleged that the appellant had asked the complainant to pull down his pants and had then rubbed his penis in the region of the complainant's anus until he ejaculated.  He was acquitted of a separate charge of attempting unlawfully to have carnal knowledge of the boy against the order of nature.  The offences were alleged to have occurred in the period 1986-1988 while the complainant who was then about 13 or 14 was residing in the household of the appellant while he attended a special school.

The grounds in the notice of appeal were not abandoned but were not argued.  Further grounds of appeal were added by leave and had as their starting point the proposition that the evidence of a witness PMJ who was 15 years of age at the time of trial was inadmissible and that similar evidence from the complainant should also have been ruled inadmissible.  No application was made in this regard at the trial.

The evidence in question concerned an incident in the bedroom occupied by the two boys.  There were double bunks in the room and the complainant gave evidence that the appellant had come into the room while he was in bed and fondled his genitalia by putting his hand inside his pyjamas.  The witness PMJ gave evidence of observing this.

Mr Crowley submitted that the evidence was inadmissible as evidence of an unnatural sexual relationship, principally because the act was of a different kind from that alleged in the counts in the indictment.  It was submitted that the evidence did not have any relation in time to the events of the charges, that it did not have the necessary similarity in the method of approach of the appellant to the complainant or the nature of the acts and that it was not established that it was directed towards sexual gratification.  It was submitted that it was uncorroborative because it did not tend to strengthen the probability that the acts charged in the indictment had occurred.

Where someone is accused of committing sexual offences with a complainant, circumstances which place the sexual side of their relationship in perspective is admissible.  Proof of similar activity or activity of a related kind both before and after the specific acts charged may be given as showing the relationship between the two persons.  The basis upon which the evidence is given is that it can be persuasive that the acts charged actually occurred.  (R. v. Ball [1911] AC 47; R. v. Witham [1962] Qd. R 49; R. v. Sakail [1993] 1 Qd. R 312).

The act was alleged to have occurred within the periods alleged in the indictment.  No plausible reason other than sexual gratification was suggested for it.  It falls within the category of acts of which evidence may be given under the principle referred to.  We therefore conclude that the evidence of the complainant and of PMJ was admissible.

No reason was advanced for exclusion of the evidence on any other ground.  The evidence of PMJ was capable of corroborating the complainant's story.  The direction given by the learned trial Judge in relation to corroboration was appropriate.

The learned trial Judge referred in his summing up to variations in the accounts given by the complainant.  The appellant gave evidence denying the allegations.  It was for the jury to determine whether they were satisfied beyond reasonable doubt of the commission of the offences.  There was evidence which, if accepted, could support the verdicts.

It was submitted that the evidence of PMJ provided too unsatisfactory a basis for upholding the conviction.  This ground is not made out.  If the jury accepted the complainant and PMJ as truthful witnesses, there was ample evidence to support convictions upon the counts upon which the jury convicted.  The appeal against conviction fails.

There is also an application for leave to appeal against sentence.  The appellant was sentenced to 2½ years imprisonment.  An affidavit was sworn to the effect that after sentence the appellant was held in uncomfortable circumstances in the Murgon watchhouse for almost three weeks.  Mr Clark submitted that the contents of the affidavit were irrelevant.  As a general rule, events during a prisoner's confinement after sentence cannot be used for the purpose of submitting that the sentencing discretion miscarried at the time when it was exercised.  The affidavit is irrelevant and as no other basis for finding that the sentence was manifestly excessive was advanced, the application for leave to appeal against sentence fails.

The appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused.