R v McCoombes

[1998] QCA 15

IN THE COURT OF APPEAL	[1998] QCA 015
SUPREME COURT OF QUEENSLAND

C.A. No. 410 of 1997.

Brisbane

[R v McCoombes]

T H E Q U E E N

v.

ARTHUR CHARLES McCOOMBES

Appellant

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Pincus J.A. Davies J.A. Byrne J.

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Judgment delivered 20 February 1998

Separate reasons for judgment of each member of the Court, each concurring as to the
orders made.
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1.         APPEAL ALLOWED.

2.         CONVICTION SET ASIDE.

3.         VERDICT OF ACQUITTAL ENTERED.

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CATCHWORDS: Criminal law - appeal against conviction - unlawful and indecent treatment of a girl under 12 years - whether verdict unsafe and unsatisfactory - where contradictions within complainant’s evidence.

Counsel:	Mrs D Richards for the appellant. Mr T Winn for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	13 February 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20 February 1998

This is an appeal against conviction. The appellant was convicted in the District Court at Brisbane of one count of unlawful and indecent treatment of a girl under 12 years; the sentence was a suspended term of imprisonment. It was common ground that the appellant touched the complainant, a girl then 6 years of age, on the inside of the upper part of her legs; the dispute at the trial was whether he also placed a hand on her vagina. Counsel for the respondent, Mr Winn, suggested that the appellant’s conviction might be upheld whether or not the Crown satisfactorily proved that the appellant put a hand on the complainant’s vagina; he referred us to an explanation of the nature of the Crown case given by the prosecutor below, in the course of his opening to the jury.

As is usual, the record does not contain counsel’s final addresses to the jury. Mrs Richards for the appellant relied, in support of her submission that the issue at the trial was whether the appellant touched the complainant on her vagina, on a statement made by the trial judge in the course of her Honour’s summing-up:

"The issues in this case are whether Mr McCoombes unlawfully and indecently dealt with her. That is whether he unlawfully and indecently touched on her vagina. That is the Crown case."

Mrs Richards also pointed out that the prosecutor did not ask for any redirection on that point. I accept the judge’s statement as to what was litigated below; that is, it is my view that the case went to the jury on the basis that they had to determine whether or not there was a touching on the vagina.

The offence was alleged to have been committed during the course of a journey in a motor car, when the complainant was sitting on the appellant’s knees or in his lap. In her evidence at the trial the complainant said nothing about being touched on the vagina, but the Crown relied, as it was entitled to do, on a statement by the complainant to the police which was video recorded and tendered under s. 93A of the Evidence Act 1977; in the course of being interviewed by the police within a few days of the events in issue the complainant said that the appellant "was feeling me on the legs, and my knees, and my vagina". It was pointed out for the respondent that it was not very surprising that the complainant gave no evidence supporting that assertion at the trial; for reasons which are unexplained, the trial did not take place until four years after the alleged offence. It does not appear to me that the mere circumstance that at the trial the complainant failed to recall, or was perhaps unwilling to give evidence about, the touching on the vagina makes the verdict unsafe.

But that is not the respondent’s only difficulty. The evidence was that shortly after the offence was supposedly committed the complainant spoke to her mother and demonstrated to her what had happened. The mother gave evidence at the trial which included evidence of an explanation and demonstration by which the complainant had conveyed to her that "approximately" twice the appellant had rubbed her legs. The mother agreed with the following description: "The hands were rubbing along the top and inside of the leg from the knee towards the groin". The mother’s evidence did not support the Crown case, in that the complaint made to her shortly after the event in question did not, it appeared, include a complaint of touching on the vagina.

A further problem for the Crown case was that when the complainant was interviewed by the police, as mentioned above, she was asked to and did demonstrate what the appellant had done. Her demonstration differed, as to the location of the touching, from that indicated by the complainant’s mother but, more importantly, the complainant did not demonstrate to police any touching on the vagina.

Of the four places in the evidence in which one might look for support for the Crown case, it was to be found only in one, being the complainant’s recorded oral statement to the police. The mother’s evidence about the complaint made to her, the complainant’s demonstration to the police and the complainant’s evidence at the trial all failed to support the Crown case of touching on the vagina. The appellant gave no evidence at the trial, but the jury had before them evidence of a conversation he had with the police some three years after the events in question. The transcript of that discloses that the appellant admitted rubbing the complainant’s legs, did not admit having touched her vagina, and said in effect that if he had done so that was not intentional.

In Jones (1997) 72 A.L.J.R. 78, the High Court discussed the test which should be applied when, on appeal, a convicted person complains that the verdict was unsafe. The discussion in the principal judgment runs from pp. 84-86 and it is I think enough to quote some representative parts of it:

"Having regard to the statements in M, there can be no doubt that ‘a miscarriage of justice’ also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just."

. . .

"In M, Mason C.J., Deane, Dawson and Toohey JJ. said that the test for an unsafe or unsatisfactory verdict was whether the Court thought that, upon the whole of the evidence, it was ‘open to the jury’ to be satisfied beyond reasonable doubt that the accused was guilty".

"Mahoney A.C.J. expressed discomfort with his decision to dismiss the appeal . . . that discomfort was attributable to a misapprehension by the Court of Criminal Appeal as to the manner in which the test in M should be applied rather than to the terms of that test."

"Mahoney A.C.J. . . . referred to a passage from M which contained the ‘open to the jury’ test . . . Sully J. also made reference to whether certain conclusions were ‘reasonably open to the jury’ . . . No other reference was made in the judgments of the Court of Criminal Appeal to the ‘open to the jury’ test formulated by the majority in M."

It is the "open to the jury" test which is established, or reaffirmed, by Jones; it is not as clear to me as it should be that that test has precisely the same effect as other tests referred to in passages from M which were approved in Jones. An important example is the reference to a "significant possibility that an innocent person has been convicted" (85). However, it is my view that this Court must apply the test whether it was open to the jury to be satisfied of guilt; in addition to the passages quoted above, I refer to the second sentence under the heading "The convictions are unsafe and unsatisfactory" at p. 87 of the principal judgment.

It commonly happens in such cases as these that there are contradictions of a serious kind within the complainant’s evidence; that is so here. The unusual feature of the present case is that we have evidence of what the complainant said and demonstrated to her mother and to the police, shortly after the events in question, which evidence is in large part inconsistent with the Crown case that there was a touching on the vagina. Because, as Mr Winn repeatedly emphasised, there was some evidence on which the jury could have found that there was such a touching, namely the complainant’s oral statement to the police, the question becomes whether it was open to the jury to accept that, rather than the other indications I have mentioned.

It is my opinion that the jury could not reasonably have attained a state of satisfaction of the truth of the Crown’s allegation, in the circumstances I have mentioned. They must have given overwhelming weight to the single piece of evidence in support of the Crown case, and completely discounted the evidence pointing to innocence. In the circumstances I have set out, that conclusion was not, in my opinion, open to them. The conviction must be quashed; there can be no question of a new trial.

The orders of the Court will be -

1.         Appeal allowed.

2.         Conviction set aside.

3.         Verdict of acquittal entered.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20 February 1998

I agree for the reasons stated by Byrne J. that the orders proposed by Pincus J.A. should be made.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 20 February 1998

The facts germane to this appeal are set out in the reasons of Pincus JA. On those facts, in my opinion, the jury ought to have entertained a reasonable doubt about whether the appellant assaulted the complainant's genitalia. In view of the way in which the prosecution case was advanced at trial, that conclusion means that the orders proposed by Pincus JA should be made.