R v O

[1992] QCA 218

IN THE COURT OF APPEAL  [1992] QCA 218

SUPREME COURT OF QUEENSLAND  C.A. No. 91 of 1992

THE QUEEN

v.

O

JUDGMENT OF THE COURT

Delivered the 20th day of July 1992

The appellant was convicted on 19 February 1992 in the District Court, Brisbane of indecent dealing with a child under the age of 16 with a circumstance of aggravation that the complainant was under his care at the time.  He was ordered to perform 120 hours of community service.  He appeals against that conviction and his notice of appeal also seeks leave to appeal against his sentence.  However, his counsel informed us at the outset that the latter application was in error and is not pursued.

The complainant, C, was born on 29 September 1977.  He attended a State High School and was friends with a boy, G.  G resided with his mother and her de facto husband (the appellant).  On the afternoon of 26 April 1991 after school the complainant and G went to G’s house and, during the course of that afternoon, G asked his mother if the complainant could stay the night at his house.  His mother, who apparently owned the house, said that they should ask the appellant.  G did so and the appellant consented.

At about 3 a.m. the following morning the complainant woke to discover the appellant touching him on the front of his shorts.  He pushed the appellant's hand away but the appellant persisted.  This continued, the complainant pushing the appellant's hand away on a number of occasions, for about ten minutes, and the complainant rolled over.  He said that the appellant then "started doing little circles on my backside".

The complainant then woke G, who was asleep in the same room, and the appellant left the room.  According to G the complainant told him that the appellant “touched me on the balls".  G said that the complainant appeared to be scared and was "talking real fast".  He immediately left the house, rode his bike home and climbed through his bedroom window.

The trial judge directed the jury that the complainant's appearance, his apparently uncharacteristic fast manner of speech and his leaving the house in the early hours of the morning to cycle home was evidence of corroboration.  Grounds 1, 2 and 6 of the notice of appeal contest this direction.  However counsel for the appellant conceded that the evidence in this case was not materially different from the evidence accepted as corroborative in R. v. Beaver (1979) 1 A.Crim.R. 50 which was that the complainant was shaking violently, seemed shocked and talked a lot.  There is no doubt that the complainant's scared appearance, the fact that he was uncharacteristically talking very quickly and that he left his friend's house to ride home in the early hours of the morning was, as the trial judge thought, capable of amounting to corroboration.

Grounds 3 and 4 of the notice of appeal contend that the evidence was not sufficient to establish the circumstance of aggravation, namely that the complainant was under the appellant's care. The term "under his care" is not defined in s. 210(1) of the Criminal Code or elsewhere but would include this case where, as appears from the evidence above, it was the appellant whose responsibility it was to decide whether the complainant could stay in the house which he occupied with his de facto wife, where he and the complainant's father both consented to that course, and where the complainant, pursuant to that consent, stayed in that house. The jury were therefore entitled to conclude that the complainant was at the relevant time under the care of the appellant.

The only other ground of appeal, ground 5, contended that the verdict was unsafe and unsatisfactory.  No particulars are supplied in the notice of appeal and nothing further was advanced in support of this ground beyond the matters to which we have already referred.  This ground therefore must also fail.

The appeal should therefore be dismissed and, for the reasons referred to earlier, the application for leave to appeal against sentence refused.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND  C.A. No. 91 of 1992

THE QUEEN

v.

O

____________________________________________________

THE PRESIDENT

MCPHERSON J.A.

DAVIES J.A.

____________________________________________________

Judgment of the Court delivered the 20th day of July 1992

____________________________________________________

"APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED."

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 91 of 1992

Before the Court of Appeal

The President

Mr Justice McPherson
Mr Justice Davies

THE QUEEN

v.

O

JUDGMENT OF THE COURT

Delivered the 20th day of July 1992

MINUTE OF ORDER:          Appeal against conviction dismissed.

Application for leave to appeal against sentence refused.

CATCHWORDS:                  EVIDENCE - CORROBORATION - appellant convicted of indecent dealing with child under 16 - whether complainant's appearance, uncharacteristic fast manner of speech and leaving of friend's house suddenly at 3 a.m. evidence of corroboration - whether sufficient evidence complainant 'under his care'

Counsel:A. Rafter for the Appellant

M. Byrne for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date/s:  20 July 1992