R v Murphy

[1996] QCA 256

IN THE COURT OF APPEAL	[1996] QCA 256
SUPREME COURT OF QUEENSLAND	C.A. No. 411 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Helman J.
[R. v. Murphy]

T H E Q U E E N

v.

PAUL JOSEPH MURPHY Appellant

FITZGERALD P.

DAVIES J.A. HELMAN J.

Judgment delivered 02/08/1996

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND HELMAN J., SEPARATE
REASONS OF DAVIES J.A. CONCURRING AS TO THE ORDERS MADE.

Appeal dismissed in respect of the appellant’s convictions on count 2, but allowed in respect of his convictions on all other counts, on which verdicts of acquittal be entered.

CATCHWORDS:	CONVICTION - administering a stupefying drug with intent to commit an indictable offence (x 5), indecent dealing (x 2), attempted indecent dealing (x 2) and sodomy (x 1) - 10 counts related to 5 separate incidents, on each occasion appellant allegedly administered the stupefying gas and then proceeded to attempt/commit an offence upon the complainant - whether gas administered within the meaning of s. 316 of the Code - whether the verdicts unsafe and unsatisfactory because of the unreliability of the prosecution case - some of the complaints raised by appellant included: internal inconsistencies and lack of detail in the evidence of the complainant and other prosecution witnesses, conflicts in the prosecution’s evidence, lack of particularity, absence of corroboration.
D.P.P. References (No. 1 of 1992) and (No. 1 of 1993) (1993) 65 A.Crim.R. 197 Kelsey and Mansfield v. Hill [1995] 1 Qd.R. 182. R. v. Clare [1994] 2 Qd.R. 619 R. v. F (C.A. 439 of 1994, unreported, 12/12/1994) R. v. S (C.A. 233 of 1995, unreported, 10/4/1996) S. v. R. (1989) 168 C.L.R. 266 Smith v. Corrective Services Commissioner (N.S.W.) (1980) 147 C.L.R. 134 Waugh v. Kippen (1986) 160 C.L.R. 156
Counsel:	S. Hamlyn-Harris for the Appellant Mrs L. Clare for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecution for the Crown
Date(s) of Hearing:	28 February 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND HELMAN J.

Judgment delivered 02/08/1996

The appellant was convicted in the District Court at Charleville on 7 September 1995 of five offences of administering a stupefying drug with intent to commit an indictable offence, two offences of indecent dealing, two offences of attempted indecent dealing and one offence of sodomy. The ten counts on which the appellant was convicted related to five separate occasions, and it is alleged that on each occasion the accused administered a stupefying gas to the complainant and then went on to commit or attempt to commit an offence upon him. The odd numbered counts related to the administration of the stupefying gas and the even numbered counts related to the alleged sexual offences. The complainant, B, was born on 17 April 1980 and the offences were alleged to have been committed between October 1992 and March 1994. The trial began on 1 September 1995, when the complainant was 15 years old.

The complainant met the appellant, an ambulance officer, in a country town, when the complainant injured his foot. It was not in dispute that the appellant had nitrous oxide, or “laughing gas”, to which he had access through his employment, and permitted the complainant and four other boys, aged 12 to 17 years, who gave evidence against the appellant, to inhale. The effect of nitrous oxide is to produce an unconscious state within minutes, following which the person who has inhaled the drug is generally completely amnesic, with no recollection of surrounding events or activities, including actions taken in relation to his or her person.

One of the grounds argued on appeal was that the appellant had not administered the nitrous oxide within the meaning of s. 316 of the Criminal Code. Evidence established that he introduced the boys to the gas and initially gave instructions on how to use the mask or mouth- piece. On occasions the gas cylinder was in his room and he simply offered it to the boys, while on other occasions he obtained the gas cylinder from his ambulance vehicle for them. He used no force or other compulsion or deception. There is no basis for a conclusion that any of the offences of which the appellant has been convicted occurred at a time when the complainant was unaware of the effects of the gas, which he voluntarily inhaled. The trial Judge instructed the jury that the question whether the appellant had administered the nitrous oxide was a question of fact for their decision, and that the word “administer” was “to be understood ... in its ordinary everyday sense.”

The other ground of appeal argued was that the verdicts are unsafe and unsatisfactory because of the unreliability of the prosecution evidence. It is convenient to refer first to matters of general criticism, before turning to the evidence concerning the specific offences.

It was pointed out for the appellant that, apart from internal inconsistencies and lack of detail in the evidence of the complainant and the other boys, their accounts conflicted and also differed from earlier versions which they had respectively given; for example, in his evidence at trial, the complainant said that there were “lots of mistakes” in his statement to police. Other matters raised by the appellant included the lack of particularity concerning the dates, places, and persons present for the respective offences, necessitating in some instances amendments to the indictment during the course of trial and the abandonment of some counts originally charged, and the possibility of witnesses being mistaken as to which incident occurred on what occasion. The prosecution responded by attributing the deficiencies in its evidence to the effect of the nitrous oxide and factors such as the ages of the witnesses - three of whom gave unsworn evidence, the passage of time, and confusion related to the occurrence of separate offences on a number of occasions.

The appellant also emphasised the absence of any complaint by the complainant and his return to the appellant’s residence on a number of occasions despite the appellant’s alleged misconduct. In addition, it was submitted that there was no corroboration in respect of most, if not all, of the sexual offences alleged. Another suggestion, not necessarily entirely consistent with the main thrust of the appellant’s criticisms of the poor quality of the prosecution evidence, was that the complainant and other boys might have fabricated their evidence.

Another matter given particular emphasis by the appellant was that, although it was alleged that the appellant administered the nitrous oxide and then went on to commit or attempt to commit a sexual offence against the complainant on five separate occasions, on the complainant’s evidence he only went to the appellant’s place of residence on four occasions in total. The complainant said that the first occasion was with a boy A when nothing happened, the second and third were when the appellant put his hand on his leg (counts 4 and 6) and the fourth was when he was with S and fell asleep (count 2). According to the complainant, he and S went to the appellant’s residence together on only one occasion, although S said that he was there with the complainant on a number of occasions. S was 13 when he gave his evidence, which was unsworn.

Counts 1 and 2 (sodomy)
Although not allegedly committed until March 1994, at the end of the period during which all
offences were allegedly committed, the sodomy count and the associated count of administering
a stupefying drug with intent were counts 1 and 2. The complainant inhaled a substantial
quantity of nitrous oxide and became unconscious. His evidence was that, when he awoke, he
did not notice anything unusual, and there was no indication that his clothing had been touched.
S gave evidence that the appellant had sodomised the complainant. S's evidence was that, after
the appellant put his penis “in B's bum”, B said, “get it out. It hurts.” The appellant then
withdrew his penis and the complainant “pulled his pants up. Then I left him and a couple of
minutes later he came.” Another boy, N, gave evidence that a third boy, J, was on the toilet and
that he saw the appellant kneeling over the complainant with his hand inside the complainant’s
pants moving up and down. The complainant said that he did not leave the appellant’s residence
with S, whereas S gave evidence that they left together, and, on another occasion, that he (S) and
his brother, N, left together. According to B, he took gel which the appellant had put on his
penis and the complainant’s backside. B's mother later found the gel in B's room, and, after
speaking to B (who told her that the appellant had given the gel to him) and N, she went to the
police.

Other evidence called by the prosecution was given by Sergeant Brendan Alexander Smith, who executed a search warrant on the appellant’s premises on 12 March 1994 and located a tube of bluey/greeny gel, and Dr. Taylor, who examined the complainant on 13 March 1994 and detected broken fibres of the anal sphincter. According to Dr. Taylor, the condition of the anal sphincter was consistent with sodomy within a period of between five months and two weeks prior to his examination, and that probably the only reason for the condition of the complainant’s sphincter was foreign body penetration. The grounds contained in the appellant’s notice of appeal asserted that Dr. Taylor’s evidence was either inadmissible or should not have been admitted because its prejudicial value outweighed its probative effect but, at the hearing of the appeal, this ground, which had not been the subject of complaint at the trial, was not pressed. However, in support of a contention that the evidence was insufficient to establish even partial penetration, it was submitted that Dr. Taylor’s evidence was of little probative value. In part, at least, that submission was based on a misconception that the complainant had not denied that he had been sodomised by anyone else. However, at the hearing in this Court, it was conceded that, at trial, the complainant was specifically asked whether anyone other than the appellant had ever committed sodomy upon him or inserted anything into his anus, and he had responded “no”. Nonetheless, the complainant’s evidence also lacked any reference to the statements which S said that he heard him make when the appellant penetrated him or to pulling his pants up; further, he gave no evidence of soreness or aching.

Shortly stated, the appellant’s other complaint in respect of the prosecution case on counts 1 and 2 was that there was uncertainty concerning the date when the alleged offences were committed, even whether they occurred during the day or at night-time, and where the offences were committed; the appellant occupied two different premises at different times, a “white hut” and part of the “nurses’ quarters”. In his evidence-in-chief, the complainant said that, on the occasion in question, which he said was the only occasion on which he went to the appellant’s residence with S, no-one else accompanied them. However, after saying that he had never thought that N was also there, the complainant accepted that, in his statement to police, he had said that he went there with S and N, he then said that he was unsure whether he was there or not. In his evidence, S also said that he was the only person who accompanied the complainant on that occasion while, in his statement to the police, he had said that he had gone there with the complainant and N. N, who was 12 at trial, gave unsworn evidence that, on the occasion in question, he went to the appellant’s residence with his brother S, the complainant and J.

The complainant did not mention the presence of J, whose evidence was that he had nitrous oxide at the nurses’ quarters when the appellant was residing there, but that he could not remember seeing the complainant inhaling gas. However, he later spoke in some detail of the complainant inhaling the gas, with the two of them taking turns, and he recalled the complainant “... sort of like taking his jeans back up. That’s all I can remember ... after he was on the gas.” J was 15 when he gave his evidence.

Counts 3 and 4 (attempted indecent dealing)
Counts 3 and 4 related to an occasion when the complainant and his brother K (who was 17
when he gave his evidence) visited the appellant at the nurses’ quarters where he was residing at
the time and both boys inhaled some “strong” nitrous oxide which, according to the complainant
(who was the only person who gave evidence of this incident), “left them sick and sleepy”. The
complainant’s evidence was that the appellant “laid down beside me on the bed. He put his hand
on my leg and started moving it up towards my groin.” Further, the appellant said “Do you want

a head job?” The complainant told him to “fuck off”, and pushed his hand away.

Counts 5 and 6 (attempted indecent dealing)
Counts 5 and 6 related to a similar incident which was said to have occurred about five or six
months later, except on that occasion the complainant could not remember if there was anyone
else with him. The complainant’s evidence was that he again told the appellant to “fuck off”.

With respect to both occasions, the subject of counts 3 to 6, there are inconsistencies regarding who was present, and when the offences occurred. It was also unclear whether the appellant allegedly spoke to the complainant about a “head job” on one or both occasions.

Counts 7 and 8 (indecent dealing)
Counts 7 and 8 referred to an incident which, in his evidence, S said occurred in the “white hut”
on an evening after school, a few weeks before the 1993 Christmas holidays. He was with the
complainant, but he could not recall whether a third boy was with them. In a statement he had
earlier made to police, he had said that the incident occurred during the school holidays and that
N was also present. At trial, he said that that part of his statement to the police was wrong. The
incident described by S was that when he, S, was finished inhaling the gas, the complainant’s
pants were down to his knees and the appellant was playing with the complainant’s genitals on
the bed. According to S, a similar incident had occurred on the lounge in the nurses’ quarters,
but that was not made the subject of a separate count. The complainant’s evidence did not refer
to any such incident and, as has been noted, he stated that he and S were at the appellant’s

residence together on only one occasion.

Counts 11 and 12 (indecent dealing)
Counts 11 and 12 depended on the evidence of the complainant’s brother, K, who spoke of
“sharing gas” with the complainant, whose pants were down to his knees and who had his eyes
shut. The complainant was on the bed, and the appellant was on the floor leaning over the
complainant and appeared to suck his penis. However, he did not see the complainant’s penis
until afterwards. He then took the complainant’s mask off and the complainant woke up. No
evidence of the appellant sucking the complainant’s penis was given at the committal hearing. K
was also vague in his evidence concerning the date on which this offence was committed; he was
unable to say what grade he was at school at the relevant time, and gave inconsistent versions to
the police as to the date this offence was committed.
Except for the sodomy conviction (count 2), which is referred to further below, the appellant’s
convictions in respect of sexual offences (counts 4, 6, 8 and 12) seem to us unsupportable. The
poor quality of the prosecution evidence, with its gaps and contradictions, both within the
testimony of individual witnesses and between the versions of the different witnesses, combined
with the lack of particularity concerning dates and places or details of the circumstances of the
alleged offences make this a case in which there is a significant risk that the jury convicted on
counts 4, 6, 8 and 12 not because it was satisfied beyond reasonable doubt that each of the
alleged incidents occurred but because of a perception that the appellant had a disposition to
commit such offences and did so in some form or other on some occasions within the relevant
period at one or other of his places of residence. The point is highlighted by the fact that, a
reasonable jury, acting reasonably, could not have been satisfied beyond reasonable doubt that,
for example, the alleged incidents the subjects of counts 4, 6 and 12 occurred on separate
occasions. It should be noted in respect of count 12 that the only evidence, that of the
complainant’s brother, K, finds no support in the evidence of the complainant - who would
surely have remembered if he woke up to find his pants around his knees (and quite likely
indicative that the appellant has been sucking his penis if such an event had occurred). Further,
as noted, there are difficulties in K's evidence which, relevantly, emerged for the first time at
trial.

Further, we consider that it was not open to the jury to convict the appellant in respect of count 8 as well as count 2 despite the complainant’s insistence that he and S were together at the complainant’s residence on only one occasion. The nitrous oxide might have caused the complainant to be unaware of what occurred after he had commenced to inhale it, but cannot explain the conflict between his evidence and S’s evidence concerning the number of times that they both visited the appellant at his residence. The complainant’s denial of a separate visit, the omission from his evidence of any reference to an incident such as those described by S in is evidence relating to counts 7 and 8, and the contradictions in that evidence, should have caused the jury to experience a reasonable doubt that count 8 occurred in addition to count 2.

In our opinion, S. v. R. (1989) 168 C.L.R. 266 and R. v. F (C.A. 439 of 1994, unreported, 12/12/1994) support a conclusion that the verdicts on counts 4, 6, 8 and 12 are unsafe and unsatisfactory.

However, the guilty verdict on count 2 was one which a reasonable jury could have arrived at on
all the evidence, including that of Dr Taylor. The risk referred to above that the jury might have
convicted the appellant generally by reference to a perceived disposition to offend does not seem
to us to apply with material force to the single specific offence of sodomy.
We would therefore dismiss the appeal insofar as it relates to the appellant’s conviction on count
2, but allow the appeal in respect of his conviction on counts 4, 6, 8 and 12, together with the

associated counts of administering a stupefying drug, counts 3, 5, 7 and 11.

The appeal in respect of the appellant’s conviction on count 1 remains to be considered.

The trial judge’s instruction to the jury effectively conveyed to them that the activities of the appellant disclosed by the evidence, i.e., providing the nitrous oxide and teaching the complainant how to use the associated equipment, could, in law, amount to “administering” the gas. That is contrary to the opinion of Fryberg J. to in R. v. S (C.A. 233 of 1995, unreported, 10/4/1996) in which the other members of the Court found it unnecessary to discuss the point because of the facts in that case.

Whatever the meaning which might be given to “administer” in other contexts, it is insufficient for present purposes, in our opinion, if no more is done than to “give”, “supply” or “provide” a stupefying drug to a person who, knowing its effects, voluntarily inhales it. The principles governing the construction of penal statutes are against giving “administer” such a wide meaning in the material provision, s. 316 of the Code: cp. Smith v. Corrective Services Commissioner (N.S.W.) (1980) 147 C.L.R. 134, 139; Waugh v. Kippen (1986) 160 C.L.R. 156, 169; D.P.P. References (No. 1 of 1992) and (No. 1 of 1993) (1993) 65 A.Crim.R. 197, 203-206; R. v. Clare [1994] 2 Qd.R. 619; Kelsey and Mansfield v. Hill [1995] 1 Qd.R. 182.

Accordingly, in our opinion, the appellant’s appeal against his conviction in respect of count 1
should also be upheld.
In summary, the appeal should be dismissed in respect of the appellant’s convictions on count 2,
but allowed in respect of his convictions on all other counts, on which verdicts of acquittal
should be entered.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 2nd day of August 1996

I agree with the orders proposed by the President and Helman J. and, except with respect to count 1, with their reasons.

Whether, in law, acts by an accused amount to "administering" a stupefying drug will depend on the nature of those acts and the relationship between the accused and the person to whom the stupefying drug is said to have been administered. Here the relationship between the appellant and the complainant was not one of the usual relationships of trust and control. There was, however, a substantial difference in age between them, the complainant being only 12 or 13 at the time, and the appellant might reasonably have been seen by the complainant as a person who could be trusted in the use of the equipment which delivered the gas. Moreover by the time of the events alleged in count 1 the complainant had, on one view of the evidence, acquired the capacity and desire to administer the gas to himself because the appellant had, on previous occasions shown him how to do it and possibly encouraged him to.

Nevertheless on the occasion alleged in count 1 the complainant voluntarily returned to the appellant's premises in order to ingest the drug and the appellant, although permitting him to administer it to himself, performed no act involved in that administration.

In those circumstances I do not think a reasonable jury could have been satisfied beyond
reasonable doubt that, on that occasion, the appellant administered the gas to the complainant.