R v Main

[1993] QCA 408

IN THE COURT OF APPEAL  [1993] QCA 408

SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1993

Brisbane

[R. v. Main]

BETWEEN

T H E     Q U E E N

v.

NEIL MAIN
  (Appellant)

The President
                  Mr Justice McPherson
                  Mr Justice Thomas

Judgment delivered  27/10/93

Separate reasons for judgment by each member of the Court. Fitzgerald P. dissenting as to conviction on count 2. Thomas J. dissenting as to sentence.

APPEAL AGAINST CONVICTIONS DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE ON COUNT 1 REDUCED TO IMPRISONMENT FOR FIVE YEARS. SENTENCE ON COUNT 2 NOT AFFECTED.

CATCHWORDS    CRIMINAL LAW - CONVICTION - Sodomy - Indecent dealing - Sections 208, 210 Criminal Code (Qld.) - Whether complainants' testimony unreliable - Whether verdict unsafe and unsatisfactory.

CRIMINAL LAW - SENTENCE - Circumstances of aggravation - Whether manifestly excessive.

Counsel:     P.J. Alcorn for the appellant

P. Callaghan for the Crown

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the Crown

Hearing Date: 12 October 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1993

Before       The President
             Mr Justice McPherson
             Mr Justice Thomas

[R. v. Main]

BETWEEN:

T H E   Q U E E N

v.

NEIL MAIN
  (Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 27/10/93

The circumstances giving rise to this appeal are set out in the judgment of McPherson JA.
     I agree with his Honour that the appeal against the appellant's conviction for sodomy must fail, but I would allow the appeal in respect of his conviction on the second count for indecent dealing.
     Whatever the explanation for the complainant's uncertainty as to what occurred, whether sleeplessness or some other cause, it was essential to the case against the appellant that the complainant's evidence was sufficiently reliable to sustain a conclusion, beyond reasonable doubt, that the incident which he described in fact took place and, for example, did not occur only in a dream.  In my opinion, a reasonable jury, acting reasonably, could not have been so satisfied.
     I agree with McPherson JA. that the application for leave to appeal against sentence should be granted, the appeal allowed, the sentence on count 1 reduced to imprisonment for 5 years, and the sentence on count 2 not disturbed.

IN THE SUPREME COURT

OF QUEENSLAND

C.A. No. 148 of 1993

Brisbane

Before    The President
         Mr Justice McPherson
         Mr Justice Thomas

[R. v. Main]

BETWEEN

T H E     Q U E E N

v.

NEIL MAIN
  (Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Delivered the Twenty-Seventh day of October 1993

This is an appeal by Neil Main against his conviction at his trial in the District Court at Emerald on an indictment charging him with an act of carnal knowledge by anal intercourse of a child under the age of 16 years (count 1), and also with indecent dealing with another child under the age of 12 years (count 2).  The complainants are boys who are related as brothers, or it may be half-brothers or step-brothers.  It is sufficient for present purposes to refer to the complainant in the first count as Lance, and in second count as Terry.  At the time of the incidents, which were alleged to have taken place between March and June 1991, they were respectively 12 and 10 years old.  The trial, at which both of them gave evidence, took place in March 1993.
     Evidence for the prosecution was that at the time of the alleged incidents the complainants were staying with the appellant at his home at Willows.  The appellant was a friend of the father of the complainants, who used sometimes to visit him, on occasions staying at his house overnight.  The alleged offences were committed in the course of separate visits of that kind.  The appellant, who gave evidence at the trial, denied that the acts complained of had taken place.
     The notice of appeal in the record contains some nine separate grounds in all.  However,  at the hearing of the appeal counsel for the appellant advised that only the last of those grounds would be relied on, it being that in all the circumstances the jury verdict was unsafe and unsatisfactory.  No complaint is made against the summing up or against the conduct of the trial in any respect.
     The thrust of the appellant's complaint is that the testimony given by the two complainant boys at the trial was so unreliable as to make the verdicts unsafe.  On appeal it was stressed for the appellant that the complainant Terry had in the course of cross-examination at the trial admitted that he was not really sure what had happened on the night on which he claimed to have been indecently dealt with by the appellant (count 2).  According to what he had told the investigating police, Terry and his brother Lance and the appellant were all sleeping in the same bed at the appellant's home that night.  Terry said he was dozing off to sleep when he realised that the appellant was trying to "undo me pants down and was touching my willy and all that".  He tried to stop him and succeeded in getting out of the bed and waking Lance up.  The two boys then went home straight away.  Terry's mother gave evidence that at a later date he had complained to her about what had happened, although he wondered if it had all taken place in a dream.  She also said that she recalled that he had returned home on the evening in question with his face white and "frightening". 
     What Terry told the police was tape-recorded and admitted in evidence at the trial (ex. 2).  It was played to the jury, and much of its substance was repeated by Terry in evidence given under cross-examination.  Criticism can fairly be levelled at the quality of parts of the testimony Terry gave in relation to count 2.  Even so, his evidence does not stand alone.  Both his brother Lance and his mother were able to corroborate the evidence of the boys' sudden departure from the appellant's house in the night and their unexpected return home.  The jury may well have thought that Terry's admission under cross-examination that he was not really sure of what had happened could be explained by his sleepy condition at the time of the incident, and that, if anything, it went to suggest he was being an honest and accurate witness.
     In any event, the jury may reasonably have been influenced in reaching both verdicts by the evidence given in relation to count 1.  They might fairly have reasoned from the testimony of Lance in relation to that charge that the appellant was taking advantage of the opportunities afforded by having these two young boys alone in the house with him.  If accepted, the evidence on count 1 would make the complaint under count 2 so much more credible, or at least less incredible.  The practical result is that the fate of the appeal may be viewed in the end as turning largely on the content and quality of the evidence given in support of count 1.
     The evidence on count 1 charging a single act of sodomy consisted principally of Lance's testimony.  He said that on the occasion in question the appellant had called him into the bedroom of the house.  He produced what Lance described as a freezer bag and a bottle of baby oil.  He put his arms around Lance and held him like that for some five or so minutes before lifting him on to the far side of the bed.  Lance said the appellant then put baby oil in the plastic bag and put it over the end of his penis.  He said that the appellant then started "doing it" through his legs.  The appellant told Lance, who was lying on his back at that time, to roll over.  He took Lance's pants off and smeared baby oil on Lance's backside.  Then he penetrated Lance's anus with his penis.
     At about this stage there was an interruption caused by the arrival of Lance's older sister Carol, who knocked on the door.  Lance took the opportunity to get up and go home with her, instead of staying on at the appellant's house for the night.  Her arrival and departure with Lance, who was driven home by Carol, also tended to confirm, even if only partially, his version of events.  She said that when she arrived at the  appellant's house it was dark, but a light was then turned on and she saw Lance, who "looked really ghostly white; and I asked him what was wrong in front of Neil and Peter, and he didn't say anything". 
     The Peter she referred to was Peter Fleming, who also gave evidence at the trial.  He said that in March 1992 he had been staying in the appellant's house.  One evening he and the appellant were sitting at the table in the kitchen drinking and conversing when the appellant started crying.  The appellant proceeded to explain that he had been letting the boys play with him and he had been playing with the boys.  An argument followed and some kind of "punch up" took place between the two men.  Fleming's evidence could fairly be viewed as amounting to some corroboration of both boys in relation to the incidents alleged against the appellant.
     In any event, it is clear that the jury accepted as credible the testimony of Lance and Tony as to what happened.  It is true that there were some inconsistencies and imperfections in their evidence, particularly when a comparison is made between the account Terry gave at the trial and some of what he said at the committal proceedings. Much stress was also laid on alleged inconsistencies in the testimony of Lance concerning his physical position on the bed when the appellant began to touch him.  Lance first said he was on his back, but elsewhere that he was on his stomach at that time.  Scrutiny of the questions and answers in relation to that matter tends, however, to suggest that it may well have been imprecision in formulating the questions put to him that was responsible for some of Lance's confusion. 
     It was in any event very much within the province of the jury to decide matters like these; they had the advantage, which I do not share, of seeing both of the complainant boys and all the other witnesses, including the appellant himself, giving their evidence at the trial.  There is nothing in the testimony of any of the prosecution witnesses to raise serious doubts about their veracity, or to suggest that for some reason the verdicts were unsafe or unsatisfactory.  On the contrary, to take a single example, the testimony of Lance recounting the appellant's use of baby oil as a lubricant might be thought to add particular cogency to his version of those events.  There is nothing anywhere in the material to suggest why the boys should have chosen to fabricate these charges against the appellant, and it is difficult to imagine a motive for their wishing to do so.
     It follows that nothing is shown that would cause the Court to interfere with the verdicts on either count.
     In addition to the appeal against conviction, there is an application for leave to appeal against the sentence of imprisonment for 7 years imposed in respect of the offence in count 1.  The sentence on count 2 was one of 3 years imprisonment, but it was made concurrent with the longer sentence.  In real terms it is only the longer term that is in question.
     Before sentencing, his Honour was referred to the decision of the Court of Criminal Appeal in R. v. Wilson C.A. 287/1990 and to his own sentencing decision in Doyle.  Neither of those matters seem to be fairly comparable in its circumstances with those of the present case.  The most serious aspect of the offences proved here is that the boys were in the appellant's care at the time he abused them.  That was a circumstance of aggravation that was charged, and it was found by the jury in relation to each count.
     Bearing that feature in mind, it remains true that what I am concerned with is a single act of sodomy on a boy aged 12, together with what looks rather like the beginning of an attempt at another.  The offences were isolated and they were not repeated.  No violence or force of any kind was used.  It may be correct to say that there is no evidence that either boy has suffered any lasting physical or emotional consequences as a result of their experiences, although it is equally true to say there is no evidence that they have not suffered it.
     The appellant is a man of some 48 years of age.  He has a quite lengthy record of previous offences, but virtually all of them are of the most minor kind or degree.  Many appear traceable to alcoholic excess, and few, if any, have attracted periods of actual imprisonment.
     In the light of all these circumstances, personal and otherwise, I incline to view that the penalty of 7 years imprisonment is too severe.  The application will be granted, the appeal upheld, and the sentence on count 1 reduced to imprisonment for 5 years.  The sentence on count 2 is not affected.  The appeal against conviction is, as I have said, dismissed.