R v Mills

[1997] QCA 110

IN THE COURT OF APPEAL	[1997] QCA 110
SUPREME COURT OF QUEENSLAND

C.A. No. 522 of 1996

Brisbane

[R. v. Mills]

THE QUEEN

v.

GEOFFREY SIDNEY MILLS

Appellant

Fitzgerald P.
Davies J.A.

Mackenzie J.

Judgment delivered 9 May 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - indecent dealing - appeal against conviction - indictment charged appellant with sexual offences concerning four children - appellant convicted in respect of one complainant only - inconsistencies between evidence given by complainant at trial and committal - jury not warned that there was no evidence of fresh complaint - whether verdict of guilty unsafe and unsatisfactory
Counsel:	The appellant appeared on his own behalf. Mr D. Meredith for the respondent.
Solicitors:	The appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	22 April 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 9 May 1997

The appellant has appealed against his conviction of one offence of unlawfully and indecently dealing with S.H., a child under the age of 12 years. The indictment presented against the appellant also charged him with four similar offences involving three other children. A nolle prosequi was entered during the trial in respect of one of the other counts and the appellant was acquitted in respect of the other three counts.

The evidence in relation to the offence of which the appellant was convicted came from S.H. and the appellant. S.H. gave evidence that, when she was wearing swimming togs and shorts and sitting on the appellant’s lap, he put his hand up her shorts and touched her on the outside of her swimming togs in the area of her vagina. The appellant’s evidence was that, on an occasion when she was upset and crying, S.H. sat on his knee and he comforted her, but he did not touch her improperly. Plainly, the jury disbelieved the appellant and was satisfied that the evidence of S.H. was credible and reliable.

The principal complaint of the appellant, who represented himself on this appeal, was that the uncorroborated evidence of S.H. was insufficient to sustain a guilty verdict. Reference was made to inconsistencies between the evidence given by S.H. at the appellant’s trial and evidence which she had given previously at the committal hearing and at an earlier trial which had been declared a mistrial. It was also submitted that there were inconsistencies between the evidence given by S.H. and evidence given by the other children in respect of the other offences with which the appellant was charged, and that she was evasive in her evidence in respect of the other counts, claiming numerous times that she could not remember what had occurred in response to specific questions seeking details. However, there is no basis upon which it could be concluded by reference to criticisms of S.H.’s evidence that it was not open to the jury to accept her evidence and convict the appellant on the basis of that evidence.

It was submitted that, on the prosecution case, S.H. was also a corroborating witness in respect of other offences with which the appellant was charged, and that the conviction of the appellant was inconsistent with his acquittal on other counts on the basis that the jury must have disbelieved S.H. in relation to the evidence which she then gave. The foundation of the submission is misconceived but, in any event, does not lead to the conclusion contended for by the appellant. It was open to the jury to believe S.H. in respect of the offence of which the appellant was convicted although it did not accept her evidence in respect of other matters.

Another submission made was that the jury were not instructed to be satisfied beyond a reasonable doubt in respect of the offence of which the appellant was convicted, but it is obvious from the summing-up that the jury can have been under no misapprehension concerning the standard of proof required of the prosecution.

The final matter to which it is necessary to refer is that the appellant contended that the trial judge should have warned the jury that there was no evidence of fresh complaint by S.H. The offence of which the appellant was convicted occurred about five days prior to S.H. mentioning the matter to her mother on 1 October 1995. On that day, another complaint or other complaints were also made against the appellant and all complainants were interviewed by police. In his directions to the jury, the trial judge made reference to the complaint of S.H. as a fresh complaint, and a request for redirections was subsequently sought. However, for tactical reasons, that request was later withdrawn. In the circumstances, there is nothing in this point also, particularly as the trial judge gave adequate warnings concerning the dangers of convicting on the uncorroborated evidence of a child.

In summary, none of the complaints made by the appellant warrants this Court interfering with his conviction and his appeal must be dismissed.