R v L

[1996] QCA 346

IN THE COURT OF APPEAL	[1996] QCA 346
SUPREME COURT OF QUEENSLAND

C.A. No. 289 of 1996

Brisbane [R. v. L]

THE QUEEN

v.

L

Appellant

Fitzgerald P.
Davies J.A.

Lee J.

Judgment delivered 20/09/1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL - Appeal against conviction on one count of rape and two counts of indecent dealing - unsafe and unsatisfactory verdict - whether a reasonable jury must have entertained a reasonable doubt about the guilt of the appellant - inconsistencies in complainant's evidence - continued association between complainant and appellant after the rape - complainant's evidence uncorroborated - evidence of fresh complaint came only from the complainant.
Counsel:	Mrs. D. Richards for the appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	16 September 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 20th day of September 1996

The appellant was convicted in the District Court at Toowoomba on 7 June 1996 of one count of rape and two of indecent dealing with a child under the age of 16 with circumstances of aggravation. His sole ground of appeal is that the verdicts were unsafe and unsatisfactory.

The Crown case relied almost entirely on the evidence of the complainant who, at the time she gave evidence at the appellant's trial in June this year, was 15 years of age. Her evidence was uncontradicted and, if accepted by the jury, proved each of the offences. The question before this Court is therefore whether a reasonable jury must have entertained a reasonable doubt about the guilt of the appellant; or, to put it another way, whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. No challenge was made to the adequacy of the learned trial Judge's directions.

The complainant said that the rape occurred during a week over the Christmas period at her home when the appellant, who was a family friend had, together with his wife and daughters, come to stay with the complainant's family. The complainant was then aged 13. The relevant events occurred on a day during that week in which the complainant, the appellant and his daughter N, then aged nine or ten, were the only occupants of the house. Most of the other members of both families had gone to the Recyclers' Market. The occasion was precisely identified and no criticism was made of that. Nor was any criticism made of the complainant's evidence as to the location of the commission of the offence. She said it occurred in the garage, which was being used as a bedroom and in which she was making beds. N was upstairs in the complainant's bedroom. The appellant walked into the garage and bolted the door on the inside.

However the appellant points to inconsistencies in the complainant's evidence as to the sequence of events after the appellant entered the room and as to their details. These were for the most part inconsistencies between her evidence in Court and what she had said on a previous occasion. These were matters upon which the jury were directed and which they would no doubt have considered in deciding whether they should accept her evidence. Very much depended upon their assessment of the complainant as a witness of truth. In that they had the advantage, which this Court lacks, of observing the complainant's demeanour whilst she was giving evidence and making some assessment of her as a witness of truth. The inconsistencies themselves were no more than one would expect from an honest person recollecting events which had occurred about a year and a half before.

Much the same is true of the criticisms made of her evidence with respect to the events which constituted the indecent dealing counts. These, she said, occurred in July 1995 at the appellant's residence at Oakey when she and the appellant were alone in the house. Her mother, as well as she, identified this occasion. Again the inconsistencies were no more than one would expect from an honest witness recollecting events which occurred about a year before.

A more substantial reason for doubting the veracity of the complainant's evidence is that she continued to associate with the appellant in an apparently friendly manner after the alleged rape, including telephone contact from time to time, and, notwithstanding the rape, agreed to stay with the appellant overnight in his house by herself in July 1995. This conduct, it was submitted, was inconsistent with the rape having occurred. However the complainant's evidence must be viewed in a context in which there was a continuing close friendship between her family and that of the appellant which included apparently, trust reposed by her mother to the extent of overruling the complainant's reluctance to stay with the appellant on the night in July.

Other matters relied on by the appellant were that the complainant's evidence was uncorroborated, that the evidence of fresh complaints in respect of the rape came only from the complainant and that there was opportunity to complain to her mother on numerous occasions, and indeed to others, and that was not done.

It is true that the complainant's evidence was uncorroborated. There was evidence from a doctor who examined the complainant on 12 October 1995, that her hymen had scattered partial and full thickness tears indicating vaginal penetration. The doctor thought that these were not new, that is within the previous fortnight, but she was unable to estimate their age. Nor was the doctor able to estimate whether the damage occurred from one penetration or a number. Consequently, although the complainant denied having had intercourse with anyone else, it was accepted that this was not corroborative.

It is also true that the evidence of fresh complaint came only from the complainant. It was made, according to the complainant, to the appellant's daughter the day after the alleged rape. She did not tell her who had raped her. The appellant neither gave nor called evidence. Neither the absence of corroboration nor the fact that the only evidence of recent complaint came from the complainant, in the circumstances of this case, in our opinion gave any cause for thinking that the verdict was unsafe.

That she did not complain to her mother, or for that matter to other adults, may have been explicable rationally; for example a perception that, because of the close relationship between the families, such a complaint would not have been believed or that she was too embarrassed by what had happened to complain.

In summary, neither separately nor taken together were the above matters sufficient to enable this Court to say that the verdict was unsafe and unsatisfactory. The appeal should therefore be dismissed.