R v Marks

[1992] QCA 24

IN THE COURT OF APPEAL  [1992] QCA 024

SUPREME COURT OF QUEENSLAND

No. 85 of 1991

BETWEEN:

THE QUEEN

v.

OWEN VICTOR MARKS

(Appellant)

JUDGMENT - THE COURT

Delivered the 16th day of March 1992

On 16 October 1991 the appellant was convicted in the District Court at Gympie on a charge that between 1 February and 23 November 1990 he unlawfully and indecently dealt with a female child under the age of twelve years.  He was found not guilty of three other, similar charges.  On 28th October, 1991 he was fined $500 and sentenced to imprisonment for forty days in default of payment.  His appeal against conviction was heard by the Court on 2nd March and was allowed.  The conviction was quashed, a verdict of acquittal entered and it was ordered that there be no re-trial.

The appellant was the headmaster of the primary school at which the complainant child was a pupil, and each of the four offences related to an occasion when it was alleged that the appellant touched the child outside her clothing.  On each of the other three occasions, there was no evidence capable of corroborating the allegations of the complainant.  However, another female child gave evidence which was relied upon as corroboration in respect of the offence for which the appellant was convicted.

The incident in question was said to have taken place when the complainant was playing on the "monkey bars" in the school playground.  The appellant was supposed to have tickled the complainant under the arms and, in the course of doing so, rubbed her breasts.  The appellant gave evidence denying the allegations.  The two children gave evidence which was marked by a lack of certainty and by inconsistencies, at least in respect of matters of detail.

The following passage appears towards the end of the summing up of the trial judge:

"There is a clear conflict of evidence between the accused, on the one hand, and A and B on the other.  You must keep all of these things in perspective, this evidence that you have heard, and at the end of the day you have to ask yourself in respect of each case are you satisfied beyond reasonable doubt not only that the acts alleged occurred but also that there is no other explanation for them and no other construction that can be placed upon them than that they were an indecent dealing with the child?  In other words, not only must you be satisfied that each of those actions occurred, but you must be satisfied beyond reasonable doubt that what was occurring was an intentionally furtive, surreptitious sexual dealing with A and nothing else."

Earlier, after directing the jury that there was no corroboration in respect of the other three offences charged, the trial judge had said:

"However, Count 2 is in a different position.  On Count 2 you have the clear evidence of B.  She gives evidence of having effectively, witnessed what must be the incident that A complains of.  So, not only does her evidence actually corroborate A on Count 2, B gives direct evidence of the commission of the offence as to a witness to it.  In respect of three counts, counts 1, 3, and 4, A is an uncorroborated child who complains of a sexual dealing with her.  In respect of count 2 she is corroborated by the evidence of another child.

Now, it is quite true that you must scrutinise very carefully the evidence of children.  We all know how children have rich fantasy lives, but on the other hand that doesn't mean that you would conclude that either or both of those young girls were liars.  Their evidence effectively stands of falls on its own worth."

There are no other presently material passages in the summing up.

Before this Court, the respondent conceded "... that the learned trial judge ... effectively took away from the jury its function of determining as a question of fact whether the evidence of [B] did amount to corroboration of the complainant."  However, the respondent sought to sustain the verdict on the ground that there had been no substantial miscarriage of justice because "... had there been a proper direction an corroborative evidence, a reasonable jury, acting properly and not perversely, would undoubtedly have convicted ... and ... there was in fact substantial evidence corroborating that of the complainant whose evidence the jury clearly accepted beyond reasonable doubt ...".

Had there been a proper direction on corroboration a reasonable jury might have doubted whether they should accept B's evidence and whether, if they accepted it, it was corroborative.  Further, it is impossible to sustain the respondent's contention that the jury clearly accepted the complainant's evidence as of itself sufficient to establish the change beyond reasonable doubt, particularly when the jury acquitted the appellant of the three charges for which there was no evidence corroborative of the complaint.  The different verdict returned by the jury in respect of the other charges emphasises the critical importance of the misdirection with respect to corroboration.

The Crown's alternative submission was that, as there was "... evidence capable in law of amounting to corroboration if accepted, and upon which a jury properly instructed could convict, ... a new trial should be granted."  However, in the exercise of its discretion, the court declined to follow such a course.  The quality of the evidence and the penalty imposed made it appropriate instead to allow the appeal quash the conviction, enter a verdict of acquittal in respect of count 5 of the indictment, and order that there be no new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 302 of 1991

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Thomas

BETWEEN:

THE QUEEN

v.

OWEN VICTOR MARKS

(Appellant)

The President

Mr Justice Davies

Mr Justice Thomas

Judgment of the Court delivered on 16 March, 1992

Appeal allowed

Conviction quashed

Verdict of acquittal entered in respect of count 5 of the indictment

No new trial ordered

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 302 of 1991

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Thomas

BETWEEN:

THE QUEEN

v.

OWEN VICTOR MARKS

(Appellant)

JUDGMENT - THE COURT

Delivered the 16th day of March 1992

MINUTE OF ORDER:          Appeal allowed. Conviction quashed. Verdict of acquittal entered in respect of count 5 of the indictment.  No new trial ordered

CATCHWORDS:                  CRIMINAL LAW - MISDIRECTION AND NON-DIRECTION - Appellant convicted of indecent dealing with girl under 12 - whether trial judge misdirected with respect to corroboration particularly in light of acquittals on 3 other charges - whether jury could have accepted complainant's evidence as of itself sufficient.

Counsel:Mr T. Rafter for the Appellant

Mr J.J. Costanzo for the Crown

Solicitors:Messrs. Hill and Taylor for the Appellant

Director of Prosecutions for the Crown

Hearing dates:  2nd March, 1992