R v Magill

[2004] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:	R v Magill [2004] QCA 33
PARTIES:	R v MAGILL, Rodney William (appellant)
FILE NO/S:	CA No 345 of 2003 DC No 231 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2004
JUDGES:	McMurdo P and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of four counts of indecent treatment of child under 12 years whilst under his care – where complainant 8 ½ years old at time of offences – where inconsistencies in complainant’s evidence – where complainant had greater knowledge about sexual matters than might be expected of child of same age – whether verdict of guilty open to jury
COUNSEL:	A J Rafter SC for the appellant M J Copley for the respondent
SOLICITORS:	Don McMillan for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant was convicted after a jury trial of four counts of indecent treatment of a child under 12 years whilst under his care.  He contends that the verdicts are unreasonable and cannot be supported having regard to the evidence.

1. A consideration of this ground of appeal necessarily involves a review of the evidence, including those matters emphasised by the appellant.

1. The complainant was eight and a half years old when the four offences occurred on unknown dates between 8 and 14 September 2002.  She and her younger brother attended the appellant's home where the appellant's wife provided family day care.  The appellant's wife had cared for the children since November 2000, the brother on a fulltime basis and the complainant before school and during school holidays.  Initially, the complainant's mother would drop the children off at between 5.30 to 5.40am and the appellant's wife would take them to school at about 8am.  The complainant's mother regularly saw the appellant at these times.  On 16 September 2002 she commenced a new position which allowed her to drop off the children at about 7am.  From that time, she saw the appellant on only one or two occasions as he had usually left for work.  On 1 November 2002 the complainant had a friend, A, to stay the night.  That night A spoke to the complainant's mother and the next morning the complainant told her mother the appellant had touched her on the bum.  This differed from the complainant's account to police later that day.

1. The prosecution case turned on the complainant's evidence which had no independent support. She was interviewed by police on 2 November 2002 and the 45 minute video taped interview was admitted under s 93A Evidence Act 1977 (Qld). The complainant gave responsive answers in the interview and she impressed as being of at least average intelligence for her age.

1. She told police she did not like the appellant.  Sometimes he shoved his hand down her pants at her day care mum's house in the lounge room on the bottom floor.  She and her brother were usually the first to arrive.  She played a game called "lounge chairs" with the appellant.  This involved one person pretending to be a lounge chair whilst the other person sat on the first person's lap, as if it were a chair.  She and her brother played this game and the appellant joined in by sitting on her.  He then grabbed her right hand and put it into his underpants.  She could feel his "rude part and all that".  She was asked:

"Now when you said he shoved your hand down his pants, can you tell me what you felt again?
Complainant:  Like his um hairs there.
Police officer: His hairs, yeah.
Complainant:  And, and the top of it.
Police officer:  OK.  The top of what?
Complainant:  His rude part and like here's the thing and there's stripes around it and the thing like points up, like a triangle, like curves.
Police officer:  OK.
Complainant:  Like um a cone.
Police officer:  A cone?
Complainant:  Yeah. 
Police Officer:  So what did it feel like?
Complainant:  It feels gross."

1. The appellant got her other hand to squeeze his rude part at the front.  She demonstrated his actions.  She could not see what she was holding inside his pants.  The episode went on for about five minutes.  He was breathing heavily.  They then played hide and go seek and he kept breathing heavily.  Whilst this was happening, her brother was watching "Thomas the Tank Engine" in the lounge room and running around being trains.  She said the incident happened about two weeks ago.  Now, when she goes to family day care the appellant is not there because he goes to work at 6 or 6.30.  She did not like going to day care because it was boring; she would rather stay home and play with her Gameboy.

1. Later in the interview she was asked how it felt when she touched the appellant's rude part.  She said: "It felt really, really gross. … It felt like milk or something."  She said she felt the milk at the top; it felt like melted chocolate Milky Way; she felt it as soon as she put her hand on top of his rude part.  His rude part felt soft; "it was bigger in the first place but it changed then to small, then up and down, up and down."  The hairs were on top of his doodle and all around it and when she took her hand out it had milk and hair on it; it looked like white, yellowy creamy coloured stuff; the hairs were brown, grey and about a centimetre long.

1. She said the appellant did this to her four times in one week from the Tuesday to the Friday.  The first time it happened was on the Tuesday.  On the other days the same things happened but she did not get stuff on her hands.

1. The complainant gave evidence at the trial by way of closed circuit television.  She said she could not really remember what she told the police in the interview but it was the truth. 

1. Her extensive cross-examination took place over parts of two days.  She agreed that she made the complaint to her mother at the end of a break from childcare because the appellant's wife had been on holiday.  She was bored with day care and did not want to go back.  Her friends, S and A, who lived nearby did not go to day care before school and simply played at home.

1. When asked about the offences, she said that when the appellant put her hands down his pants she pulled her hands away but he grabbed her arms and pushed them down more.  She said she had forgotten about what the appellant did to her but it happened four times during the week.  She thought it was Monday, Tuesday, Wednesday and Thursday.  She did not remember anything happening on a Friday.

1. At the committal she did not say he grabbed her hands and forced them back down again but that she pulled her hands away and then walked away.  At the committal she said a boy called E and her brother were in the room when this happened.  In cross-examination at trial, she said that E was not present at day care when the appellant was home.  At the committal she said the touching occurred on Monday, Thursday and Friday of the first week. 

1. She had a good relationship with her mother and stepfather but she did not tell them what the appellant did to her.  One day she was on the trampoline with her friend, S, who is about two years older.  She did not remember S telling her about S's cousins who had been sexually molested.  She did remember telling S and her friend A, who was a year older than S, about what the appellant had done to her.  She could not remember the details of what she told them.  She could not remember what she then told her mother. 

1. She agreed that her stepfather kept "dirty" videos in the back of the video cabinet in the lounge room.  She, S and A watched them on quite a few occasions and before she was interviewed by police when S and A slept over.  The videos showed a man's penis with some hair around it and she thought they included heavy breathing.  She did not remember seeing any wet or fluid come out of penises in the videos.  The penises looked a bit like a cone on top with curves.  When she used similar terms in her police interview she was not describing what she saw in the video but what she felt when she touched the appellant.  She maintained her claim that the appellant forced her hand into his underpants and made her touch his penis on four occasions.

1. Police officer Salten took possession of a number of videos from the complainant's home; they could generally be described as pornographic and included scenes of male and female intercourse, female and female intercourse, multiple coupling and sometimes depicted the male, after intercourse, masturbating onto the female.  The masturbation typically included the male's own hand moving up and down his erect penis until ejaculation.  These activities were accompanied with moaning and heavy breathing.

1. The prosecution, very fairly, made the children S and A available for cross-examination by way of closed circuit television.  S was an 11 year old neighbour of the complainant.  One day when she was on the trampoline at the complainant's place she told the complainant that her cousins had been raped; she told the complainant the details of what happened to her cousins and that a man made them have sex with him and this included playing with his penis.  The complainant then said that she had been interfered with or molested or something similar.  In her statement to police, S said that she asked the complainant if the appellant had got her to do anything to him and she denied this.

1. A was a 12 year old neighbour of the complainant.  She remembered talking to the complainant about some cousins that had been sexually interfered with and she told the complainant the details, including that they were forced to touch a man on the penis.  The complainant then told her that she had been touched on the bottom by the appellant on two occasions.  The complainant said not to tell her mother but A nevertheless reported the matter to the complainant's mother. 

1. The appellant's video taped interview of the 4 November 2002 was played to the jury.  He told police that the complainant and her brother used to come to his home at 5.40am and he would look after and play with them until he went to work at 6.10am.  He said that he sometimes played a game with the complainant called "arm chairs" which involved her sitting on the lounge chair and him sitting on top of her in her lap.  He had a happy, appropriate relationship with the complainant and denied that he placed the complainant's hand on his penis at any time.   

1. The appellant did not give or call evidence.

1. The appellant emphasises the significant variation between the nature of the complaint initially made when compared to the complainant's evidence; the danger that the complainant had made up a false allegation after the seeds were sown in her mind by her discussions with S and A about their cousins; the complainant initially denied to S that the appellant got her to do anything to him; she did not report the matter at the first opportunity; she had access to pornographic videos which would have given her an awareness of sexual matters of the type of which she complained; there were discrepancies between her account at committal and at trial; and that she did not like going to day care and the making of the complaint had the result that she was no longer required to do so.  The appellant contends that the combination of these matters makes the complainant's evidence too tenuous to be relied upon beyond reasonable doubt and that it was unreasonable to convict him.

1. The learned primary judge pointed out to the jury both the absence of fresh complaint and also the inconsistencies between her present evidence, her evidence at the committal, her original statement to police, her statements to S and her mother, (that the appellant touched her on the bottom), and her statement to S, (that the appellant did not make her touch him).  The learned primary judge also reminded the jury that whilst ordinarily it might not be expected that a child would know details of what an adult penis looked like, in this case the child had access to videos and before she made a complaint had been told by friends about another child being forced to touch a man's penis.

1. Juries have an onerous task in deciding cases such as this.  After retiring to consider their verdict, the jury asked to have replayed the complainant's evidence recorded in the video taped statement.  Her Honour then, very fairly, carefully took them through the cross-examination of the complainant in great detail.  The resolution of the difficult issues in this case was entirely the jury's task.  Although there were matters raised in the evidence that required careful scrutiny of the child's evidence, it is clear that the jury conscientiously did this.  In the end I am not persuaded that the numerous concerns about and weaknesses in the complainant's evidence referred to by the appellant tainted the verdict.  As the prosecutor pointed out in her address, the complainant's description of the milky substance and the feel of it as having the texture of a melted Milky Way chocolate bar did not seem to be something she picked up from her conversations with S and A or through merely watching her stepfather's pornographic videos.  The various inconsistencies internally in her evidence and with other witnesses were able to be explained by her youth and the lapse of time; they did not compel a finding of inherent unreliability or dishonesty.  I am satisfied it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on this evidence.

1. It follows that the appeal against conviction must be dismissed.

1. McPHERSON JA:  I agree with what the President has written.  The appeal should be dismissed.

1. WILLIAMS JA:  The relevant facts are fully set out in the reasons for judgment of the President which I have had the advantage of reading.

1. As is not unusual in cases of this type there were a number of inconsistencies in the various accounts of relevant events given by the young complainant.  There were discrepancies between what she told her young friends, what she initially told her mother, what she told the police, and her ultimate evidence in court.  She was extensively cross-examined about those inconsistencies, but throughout steadfastly maintained that incidents as particularised by the prosecution occurred.  If the jury accepted that she was a truthful witness then there was an ample basis for convicting the appellant on each count.

1. Having considered the complainant’s evidence I am satisfied that a reasonable jury could have concluded that she was a truthful witness and convicted the appellant.  In the circumstances I am not persuaded that the verdicts are unreasonable and cannot be supported having regard to the evidence.

1. I agree with the reasons of the President in concluding that the appeal should be dismissed.