R v K

[1995] QCA 222

IN THE COURT OF APPEAL	[1995] QCA 222
SUPREME COURT OF QUEENSLAND

C.A. No. 52 of 1995.

Brisbane

Before Pincus J.A.

de Jersey J.A.

Ambrose J.

[R v. K]

T H E Q U E E N

v.

K

Appellant

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Judgment delivered 13/06/1995

Judgment of the Court

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APPEAL DISMISSED

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CATCHWORDS:	CRIMINAL LAW - conviction - carnal knowledge of a child under 12 - whether unsafe and unsatisfactory - aggregate effect of inconsistencies to be assessed against corroborative evidence and complainant's young age.
Counsel:	Mr D Lynch for the appellant. Mr B Campbell for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Public Prosecutions for the respondent.
Hearing date:	19 April 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13/06/1995
The appellant was convicted in the District Court of carnal knowledge by anal intercourse of a child under 12 with a circumstance of aggravation in that the child was in his care. He appeals against that conviction.
The appellant was the complainant's step father (living separately from his wife). The complainant gave evidence that the appellant interfered with him sexually during unsupervised access visits, at a time when he was 10 or 11 years old.
The complainant gave evidence that anal intercourse occurred on a number of occasions, but identified the particular incident involved in the charge as one which led to bleeding from his anus, and he said that he afterwards had a discussion with his sister about it. He had left his bloodied underpants on the bathroom floor, and his sister had asked him about them.
The complainant's sister gave evidence confirming the presence of blood on the boy's underpants and of fresh complaint. She also gave evidence that prior to the incident, the appellant had her call the complainant to the appellant's room, and that the appellant was the only adult in the house that day.

On the medical evidence, three findings supported the occurrence of sodomy. These were a small posterior mid line scar, the sphincter dilating more quickly than was to be expected, and a "funnelling shape" of the anus. Those three features, especially the funnelling appearance, led the doctor who gave evidence to the opinion that sodomy had more than likely occurred.

The learned trial judge left the medical evidence, and the evidence of the sister that she observed blood on the complainant's underpants, taken with her evidence that the appellant was the only other male in the house at the relevant time, as capable of corroborating the complainant's evidence that the appellant committed the act of sodomy upon him. Each of those aspects was capable of amounting to corroboration - see R. v. Dixon (unreported, Court of Appeal, 12.9.94)- and the learned judge gave full and clear directions to the jury as to how they might use that evidence.

The only ground pursued before this Court was that the conviction was unsafe and unsatisfactory, or more precisely, that "upon the whole of the evidence it was (not) open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (per Fitzgerald P in R v. Bryer (unreported) Court of Appeal, 16.12.94); discussing M. v. The Queen (1994) 69 ALJR 83).

In support of that ground, Counsel for the appellant particularised a number of inconsistencies emerging from the evidence of the complainant. Some were of very limited significance. In respect of the alleged act of sodomy, for example, the complainant said that he had been called into the room by the appellant, whereas his sister claimed that she had been told by the appellant to call the complainant in and that she did so. On one view of course, that discrepancy within the Crown case may demonstrate that the children had not collaborated to concoct a false story.

Counsel referred to other inconsistencies. For example, having given evidence that he told his sister of the act of sodomy, the complainant claimed to have told police of this in the taped interview. The Crown acknowledged that this did not occur. Having listened to the tape, the complainant also then acknowledged that he had not told the police of his conversation with his sister. The complainant then claimed to have told another police officer of the conversation with his sister after the taped interview. The Crown called the relevant police officer, but he denied that the complainant had told him of the conversation with his sister.

In approaching such discrepancies, one must of course bear in mind that the complainant was giving evidence of events which had occurred at least two years before, when he was aged only 10 or 11. It is not surprising that there may have been confusion or even mistakes about some of the detailed circumstances of the events.

Potentially more significant was the complainant's statement in evidence that the appellant gave him a cassette player for his birthday but that no sexual misconduct then occurred, whereas in an earlier taped interview with police, the complainant had said that the appellant had had anal intercourse with him on the occasion on which he gave him the cassette player - an occasion different from that of the offence. But in the end, even that arguably more significant discrepancy dims when seen against the complainant's basically consistent and credible account, in the context especially of the corroborative evidence from his sister and the doctor.

The medical evidence and the evidence of the sister provided strong support for the complainant's allegations. The aggregate effect of the inconsistencies urged before us must be assessed against that background, and of course in recognition of the complainant's young age at the time. The suggested inconsistencies are of the sort one often encounters with the evidence of such young people and in the circumstances of this case they do not warrant a conclusion that the conviction is unsafe. A review of the whole of the evidence leaves us convinced that the ground is not made out.

We would dismiss the appeal.