R v Kay

[1996] QCA 69

[1996] QCA 69

COURT OF APPEAL

FITZGERALD P
McPHERSON JA
HELMAN J

CA No 512 of 1995

THE QUEEN

v

KAY, Stephen  Appellant

BRISBANE

THURSDAY, 29 FEBRUARY 1996

JUDGMENT

HELMAN J:  The appellant in this case was convicted in the Brisbane District Court on 5 December 1995 after a trial on three counts of common assault and two counts of indecently dealing with a boy under 16 in his care.  Each offence, it was alleged, took place at a scout camp at a date unknown between 28 September and 8 October 1992.

The complainant was a boy aged 12 at the time of the alleged offences and 15 when he gave evidence.  The appellant was a minister of the Church of Jesus Christ of Latter Day Saints and was a scout master who took the complainant and the other boys to the camp at the time in question.  The only evidence of the offences came from the complainant, who said that on three occasions on the camp the appellant told him to take his pants down and then hit him on the buttocks and then kissed him.  He also claimed that on each occasion the appellant grabbed his penis.

The complainant alleged that there had been another incident on a later date in a church in which the appellant hit him on the buttocks while he was still dressed and kissed him on the mouth.  That incident was not the subject of any charge.

The appellant appeals on the ground that the verdicts of the jury were unsafe and unsatisfactory.  The appellant says that the verdicts were unsafe and unsatisfactory because the complainant's evidence was not corroborated, that there was no evidence of fresh complaint, and that that is particularly significant in relation to the incident which allegedly took place in the church because the complainant gave evidence that he had told his grandmother that the appellant had been doing "funny stuff" to him, and, although his grandmother gave evidence, she made no mention of any complaint to her at any time.  There were other matters which the appellant relied upon, chiefly concerning discrepancies between the complainant's evidence and other accounts given by him of the incidents.  There were also submissions concerning the fact that although there had been, according to the complainant, a man called N present at the time of the church incident that the complainant's evidence about that was not corroborated.

Those were all matters for the jury to consider in deliberating on the case but none of them is sufficient in my view to warrant our concluding that the verdicts were unsafe and unsatisfactory.  I should therefore dismiss the appeal.

THE PRESIDENT:  I agree.  I would only add that I noted that the lack of corroboration which was relied upon by counsel for the appellant in his written outlines also made reference to the fact that there were other boys present at the camp, whereas the appellant was the only adult.  But neither that nor the various mistakes, uncertainties or on some occasions relatively minor changes which can be seen in a perusal of the complainant's evidence does anything to dispel from my mind an overall impression of veracity.  I agree that the appeal should be refused.

McPHERSON JA:  I agree.  It is perhaps convenient to add that although the evidence of the complainant was not corroborated it was also not contradicted.  The appellant himself did not give evidence and although it cannot be said that that in any way raises an inference against him it leaves the case in a condition in which the jury might with more confidence accept the evidence of the complainant and ascribe any confusion in what he said to his youth and no doubt also to the fact that there were several incidents which had taken some place some time before the trial.  I agree with the order proposed in this appeal.

THE PRESIDENT:  The appeal is refused.