R v K

[1995] QCA 226

[1995] QCA 226

DAVIES JA
de JERSEY J
AMBROSE J

CA No 89 of 1995

THE QUEEN

v

K  Appellant

BRISBANE

DATE 21/04/95

JUDGMENT

DAVIES JA:  The appellant appeals against his conviction for indecently dealing with a boy under the age of 16.  He also seeks leave to appeal against his sentence which was one of 18 months imprisonment for that offence.  The appellant was charged with five offences; two of indecently dealing with a boy under the age of 16, of which the offence of which he was convicted was the second; two of sodomy with a boy under the age of 16, and one of wilfully exposing a boy under the age of 16 to an indecent videotape.

Each of the charges alleged as a circumstance of aggravation that the complainant was in the appellant's care.  Now the learned trial Judge directed that that circumstance of aggravation be deleted from the indictment in respect of the second count, that is the one in respect of which he was convicted when it emerged during the course of the complainant's evidence that at the time when he said this offence was committed other people including his parents were at the property where it was said to have occurred.

The only evidence against the appellant was that of the complainant, AD, who at the date of trial was 14 years of age.  He was 13 at the time of the commission of the alleged offences.  The appellant is the complainant's uncle by marriage.  He did not give or call evidence at the trial.

The appeal against conviction is based on alleged inconsistency of verdicts.  It was submitted on the appellant's behalf that there was no rational basis for the apparently inconsistent verdicts of not guilty on the first, third, fourth and fifth charges on the one hand, and on the other guilty on the second.  It was submitted that there were no distinguishing features between the evidence on the second charge and that on the other charges, and that the only reasonable inference was that the verdict was a compromise one, being a conviction on the least serious charge.

As this Court has pointed out in R v. Jones, (CA No 264 of 1992), it is proper for an appellate Court to scrutinise the evidence carefully in cases where a jury has convicted on some counts and acquitted on others.  Such careful scrutiny, their Honours said, is clearly called for in cases where there is an absence of corroborating evidence as in this case, and where consequently, acceptance of the complainant's evidence is essential to any conviction.  But as the Court there also pointed out, each case must be determined on its own facts, there is no rule of law that a conviction must be regarded as unsafe and unsatisfactory merely because a jury have obviously rejected the complainant's evidence with respect to some counts on the indictment.

In the present case, it is possible, in my view, to explain rationally a failure of the jury to be satisfied beyond reasonable doubt upon counts 1, 3, 4 and 5, but nevertheless to be satisfied to that standard in respect of count 2.

On count 3 and 4, the sodomy counts, a medical practitioner gave evidence of possible tearing of tissues and consequential scarring as a result of sodomy of the kind described by the complainant.

Although the doctor said that scarring would not necessarily occur in these circumstances, the jury may have been influenced by the absence of scarring to give the appellant the benefit of the doubt in respect of each of those counts.

The evidence of the complainant on count 5 was brief and somewhat vague.  That vagueness, together with the fact that at trial the complainant said that his uncle gave the video away to a person who lived at the back of his place, a fact which he had not previously disclosed, may have caused the jury to have a reasonable doubt on that charge.

A similar doubt may have arisen in the jury's minds with respect to count 1 because the complainant failed to give evidence about it at all on the committal hearing.  This failure was put to him at the trial and his evidence on the committal hearing in this respect was tendered.  The jury may have thought that his failure to give consistent evidence about the commission of this act of indecent dealing justified their having a reasonable doubt.

No such specific inconsistency occurred with respect to count 2 and no specific attack was made on his evidence on that count.  This was, in my view, sufficient to justify a rational distinction between the evidence on this count and that of the others.

I would not be prepared to conclude that the verdict of guilty on this count was unsafe or unsatisfactory.  Accordingly, in my view, the appeal against conviction should be dismissed.

The appellant was, at the date of commission of the offence, 45 years of age, having been born on 10 May 1948.  He was 46 at the date of trial.  He had a number of previous convictions for offences committed between 1964 and 1983, the most serious of which was a conviction of rape.  However, he also had a number of other convictions during that period, five in all, for assault, aggravated assault, assaulting police and, on two occasions, assault occasioning bodily harm.

It is of some significance, as was pointed out by Mr Glynn on his behalf, that he had no convictions since 1983 and it was submitted by Mr Glynn both below and before this Court that he had rehabilitated himself after meeting his present wife at about that time.  He was still residing with her at the time of the commission of this offence.

He also, apparently, had a reasonable work record until 1990 when he suffered a fractured neck during the course of his employment.  He suffered a back injury in the following year and in 1992 he had a laminectomy performed on his back.  He has apparently not been able to work since then.

As Mr Glynn also submitted, in view of the other charges for which he was charged, it is difficult to criticise the appellant for going to trial.  It must also be said on his behalf that whilst the offence of which he was convicted is a serious offence, it is, when one has regard to the range of offences of this kind, towards the lower end of that range.  It consisted of requiring the complainant to masturbate him.  No attempt was made to violate the boy's body or, indeed, to interfere with him in any way.

On the other hand it must be said that this is not a case involving a young man.  The appellant is a man of some maturity and notwithstanding the age of his previous convictions they were of a very serious kind and there were a large number of them: they cannot, in my view, be ignored.

No closely comparable case was cited to us.  However, in view of the circumstances to which I have referred I think that the sentence of 18 months imprisonment whilst at the high end of the range was not so high as to be outside the range of a sound sentencing discretion.

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

de JERSEY J:  I agree.

AMBROSE J:  I also agree with respect to the appeal and to the refusal of the application for leave to appeal against sentence.  I take the view that the sentence imposed was at the higher end of the sentencing range but could not be said to be manifestly excessive having regard to the previous criminal record of the appellant.

DAVIES JA:  The orders will be as I have indicated.