R v Lawrence John Edward O'Shea No. SCCRM 93/153 Judgment No. 4108 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4108

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), MOHR(3) AND DUGGAN(1) JJ

CWDS
Criminal law and procedure - Appeal against conviction - alleged sexual offences against a child under 12 years of age - unsatisfactory features of uncorroborated evidence of complainant - verdicts unsafe and unsatisfactory - appeal allowed - verdicts and judgments of acquittal substituted. Chidiac v The Queen 171 CLR 432 referred to.

HRNG ADELAIDE, 23 July 1993 #DATE 18:8:1993
Counsel for appellant:     Mrs M.E. Shaw
Solicitors for appellant:    Elston and Gilchrist
Counsel for respondent:     Mr Barry J. Jennings QC
   with Ms J Rusalen
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 DUGGAN J The appellant was presented on an information alleging the commission of the following offences:
    "First Count Statement of Offence Unlawful Sexual
    Intercourse with a Person Under 12. (Section 49(1) of the
    Criminal Law Consolidation Act, 1935.) Particulars of Offence
    Lawrence John Edward O'Shea on about the 14th April, 1990 at
    Marden, had anal sexual intercourse with (the complainant), a
    person of the age of about 9 years.
     Second Count Statement of Offence Inciting an Act of Gross
    Indecency. (Section 58(1) of the Criminal Law Consolidation Act,
    1935.) Particulars of Offence Lawrence John Edward O'Shea on
    about the 14th April, 1990 at Marden, incited (the complainant), a
    child of the age of about 9 years, to commit an act of gross
    indecency with Lawrence John Edward O'Shea by requesting the child
    to urinate in the mouth of the said Lawrence John O'Shea.
     Third Count Statement of Offence Unlawful Sexual Intercourse
    with a Person Under 12. (Section 49(1) of the Criminal Law
    Consolidation Act, 1935.) Particulars of Offence Lawrence John
    Edward O'Shea between April, 1990 and July, 1991 at Marden, had
    sexual intercourse with (the complainant), a child under the age
    of 12 years, by causing (the complainant) to perform an act of
    fellatio upon him. Further particulars being that, on the said
    occasion, Lawrence John Edward O'Shea requested the said child to
    drink the seminal fluid of Lawrence John Edward O'Shea and, on
    that occasion, the child spat the seminal fluid on the carpet.
     Fourth Count Statement of Offence Unlawful Sexual Intercourse
    with a Child Under 12. (Ibid.) Particulars of Offence Lawrence
    John Edward O'Shea between the 14th April, 1990 and the 25th
    October, 1990 at the Koster Neighbourhood Centre, Trinity Gardens,
    had sexual intercourse with (the complainant), a child of the age
    of about 10 years, by causing (the complainant) to perform an act
    of fellatio upon him.
     Fifth Count Statement of Offence Unlawful Sexual Intercourse
    with a Child Under 12. (Ibid.) Particulars of Offence Lawrence
    John Edward O'Shea in about the month of June, 1991 at some bushes
    in the vicinity of the East Adelaide Primary School, Saint Peters,
    had anal sexual intercourse with (the complainant), a child of the
    age of about 10 years.
     Sixth Count Statement of Offence Unlawful Sexual Intercourse
    with a Person Under 12. (Ibid.) Particulars of Offence Lawrence
    John Edward O'Shea in about the month of July, 1991 at some bushes
    in the vicinity of the East Adelaide Primary School, Saint Peters,
    had anal sexual intercourse with (the complainant), a child of the
    age of about 10 years." 2. At the conclusion of the Crown case the learned trial judge directed the jury to return verdicts of not guilty on counts 3, 5 and 6. The trial continued and in due course the appellant was found guilty of attempting to commit the offence alleged in the first count. He was also convicted on the second count. A verdict of not guilty was returned on the fourth count. He appealed against the convictions on the first and second counts on the ground that they were unsafe and inconsistent with the not guilty verdict on count 4. 3. The complainant was 12 years of age at the date of trial and his evidence was unsworn. He was nine years of age at the time of the incidents in respect of which the appellant was found guilty. It was not in dispute that he met the appellant at the Koster Neighbourhood Centre opposite the boy's home at Trinity Gardens. The appellant took computer classes there and the complainant was a pupil. The prosecution alleged that the appellant embarked on a course of sexual conduct with the boy shortly after their first meeting. 4. At the conclusion of the Crown case there was no evidence at all on counts 3, 5 and 6 despite the fact that the prosecution had given details of these alleged offences in the course of opening. Furthermore there were unsatisfactory features about the evidence on the remaining counts and the trial judge agreed to advise the jury that they could return verdicts of not guilty on those counts at that stage of the proceedings. The jurors indicated that they wished the case to continue but, as I have already pointed out, they found the appellant not guilty on the fourth count. 5. The circumstances in which the allegations were first made by the complainant give rise to considerable disquiet. The appellant met the complainant early in 1990. He became friendly with the boy and his mother. Then in the first part of 1991 the complainant met a man named Humphrys who encouraged the boy to enter into a sexual relationship with him. The boy would frequently sneak away from his home of an evening in order to meet Humphrys who regularly committed sexual acts upon him. On one occasion the boy truanted from school in order to spend the day with Humphrys. Eventually the complainant ran away with Humphrys on 7th July, 1991. They had known each other for a few months by this stage. On the first evening away the complainant spent the night with Humphrys at a city hotel. They then went to Sydney. The plan to run away from home had been discussed between the complainant and Humphrys for some weeks before they left and the boy willingly took part in masquerading as Humphrys' son. A few days before the complainant absconded he advised a person in authority at his school that the appellant had been interfering with him. He was then interviewed by the police. He told no-one at this stage that he intended to abscond with Humphrys although that course of action had been planned for some time. The appellant had made arrangements to go to the complainant's home with a computer game on the day the complainant absconded. In cross-examination the complainant conceded that he may have been worried that this visit might interfere with the plan to abscond. He said that as a result of what Humphrys had told him he believed that O'Shea had ruined Humphrys' business. He said that when he was with Humphrys he did the same things as he did with the appellant. Not only did these events raise the clear possibility of a motive for the appellant to make the allegations which he did, but it is of considerable significance that he made them knowing that he had planned to run away in a few days with a man he knew was going to abuse him sexually. 6. When the boy did complain to the police he made no reference to the course of conduct involving a series of alleged offences which were said to have taken place at the Neighbourhood Centre and of which count 4 was a representative charge. These alleged incidents were not mentioned by the complainant until he was interviewed by a lawyer from the office of the Director of Public Prosecutions approximately seven months before the trial which took place in April 1993. No satisfactory reason was given by the complainant as to why he did not mention these matters to the police in the course of their enquiry. 7. It must also be said that the complainant's evidence as to the events covered by the first two counts was vague and uncertain. He said the incidents took place after he attended a football match with the appellant in April 1990. According to his evidence they left the match before it finished and then went to the appellant's flat at Marden. Although the offence charged was unlawful sexual intercourse and the prosecution outlined that allegation in the course of opening, the complainant's version in evidence was that no penetration had taken place. The act relied upon to support the second count both in the information and the prosecutor's opening was a request for the complainant to urinate into the mouth of the appellant, whereas the incident deposed to by the boy in evidence involved urinating on the appellant's leg. The complainant said of these incidents "I've forgotten most of the stuff I said or what happened". The approach which an appellate court is to take when considering whether a verdict is unsafe or unsatisfactory was discussed in (Chidiac v The Queen 171 CLR 432). Mason CJ said (p.444):
    "In resolving that question the court must necessarily
    recognize that issues of credibility and reliability of oral
    testimony are matters for the jury. For that reason, if for no
    other, an appellate court will infrequently set aside a conviction
    as being unsafe because the evidence of a vital Crown witness
    lacked reliability or credibility. Nonetheless, occasions do
    arise when a jury proceeds to a conviction when the Crown case
    rests upon oral testimony which is so unreliable or wanting in
    credibility that no jury, acting reasonably, could be satisfied of
    the accused's guilt to the required degree. Then the appellate
    court must discharge its responsibility to set aside the
    conviction as one which is unsafe. When that happens the court is
    not substituting its view of credibility for that of the jury; the
    court is giving effect to its conclusion that, notwithstanding the
    jury's apparent willingness to accept the particular witness or
    witnesses as credible, the evidence was, having regard to its
    nature and quality, insufficient to satisfy a reasonable jury of
    the accused's guilt according to the criminal standard of proof." 8. In the present case the complainant was a child of tender years at the time of the incidents and only 12 at the date of trial. It was a case in which there were clear dangers in convicting on uncorroborated evidence. (Longman v The Queen 168 CLR 79.) There was no corroborative evidence and the appellant denied the allegations on oath. I have referred to the uncertainty of the evidence and the discrepancies between the prosecutor's opening and the evidence called as part of the Crown case. Whilst caution must be exercised in reading too much into the verdict on the fourth count it is nevertheless a factor, though not decisive itself, that the jury did not have sufficient confidence in the complainant's version to convict the appellant on that count. Finally there is the strange circumstance of a complaint against the appellant at a time when the complainant had planned to run away with the man Humphrys. Even then the extent of the complainant's allegations was not made known to the police. It is the combination of these matters which leads me to the conclusion that the verdicts on the first and second counts are unsafe and should be set aside. 9. I would allow the appeal, quash the convictions and substitute verdicts of acquittal.

JUDGE2 KING CJ In my opinion this appeal must be allowed, the convictions must be set aside and there must be a verdict and judgment of acquittal. I agree with the reasons given by Duggan J.

JUDGE3 MOHR J I agree with the decision of Duggan J.