R v O'Brien - [1999] QCA 304

IN THE COURT OF APPEAL [1999] QCA 304
SUPREME COURT OF QUEENSLAND

C.A. No. 75 of 1999

Brisbane
[R v. O'Brien]

THE QUEEN
v.

TERENCE CHARLES O'BRIEN
Appellant
de Jersey CJ
Pincus JA
White J

Judgment delivered 4 August 1999
Judgment of the Court
APPEAL AGAINST CONVICTION ALLOWED. BOTH VERDICTS BELOW SET ASIDE AND VERDICTS OF ACQUITTAL ENTERED.
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICTS - conviction of two counts of indecent dealing involving a child under 16 years of age - inconsistencies in evidence of complainant child - whether verdicts unsafe.

Counsel:Appellant appeared on his own behalf
Mr M J Byrne QC for the respondent

Solicitors:Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 16 July 1999.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 4 August 1999

This is an appeal against conviction. There were two counts in the indictment. The first alleged that the appellant indecently dealt with a child, and the second, that he permitted himself to be indecently dealt with by the child. After a trial the appellant was convicted on both counts. The witnesses called were the complainant child, his mother and a police officer who had taken statements from the child.
The appellant, who appeared for himself, has raised a number of grounds of attack on the convictions. None of the grounds in the notice of appeal alleges specifically that the verdict was unsafe, but ground 3 includes the assertion that there was "benefit of doubt". In his argument the appellant has complained of improbabilities in the complainant child's evidence. The question is whether it was open to the jury to reach guilty verdicts.
The Crown case was that the offences were committed while the complainant child was riding as a passenger in the appellant's truck during the daytime on 7 October 1997. That date was not fixed by the child, but by a receipt (Exhibit 2) dated 7 October 1997 which police obtained from the appellant. It recorded an expenditure at a wrecking company and the child's evidence at one point was to the effect that it was during a trip to the wrecking company's premises that the offences were committed; other evidence from the child threw doubt upon this evidence about that trip and suggested that the offences were committed on another occasion.
Count 1, the allegation of indecent dealing by the appellant, had two components: that the appellant took out the child's penis and that he brought his mouth into contact with it. The Crown case encountered difficulties with respect to the latter component. The second count depended on evidence that the appellant told the child to touch the appellant's penis and the child did so. The statements taken by the police officer were tendered in the form of audio recordings. The jury was also allowed, without any objection from defence counsel, to use what purported to be transcripts of the conversations which were recorded on those tapes. We have all listened to the whole of the tapes, since the hearing in this Court.
The child was born on 26 November 1992 and so was less than 5 years of age when the offences alleged were said to have been committed. When the child was first interviewed by a police officer, on 28 December 1997, the interviewer took the course of engaging in discussion of topics which he presumably thought might interest the child, before raising questions about the events of 7 October 1997. During this process, having been asked a question about friends - a matter quite unrelated to the alleged offences - the child said:
"Yeah and Terry put his, my man into his mouth when he was in the truck. And he touched it. He pulled my man out."
The word "man" was intended by the child to mean penis. Shortly after having made the statement we have quoted, the child confirmed what he had said, in response to further questions. This allegation was no doubt the most reprehensible of the three improper contacts alleged in the two counts, as explained above; it was also that in relation to which the Crown case was at its weakest.
Under further questioning by the police officer, the child said in effect that the appellant pulled the child's penis out and did "just nothing else". When asked again what the appellant did when he pulled the child's penis out, the child said "nothing else just put it in his mouth". But it is not that inconsistency which is the major difficulty for the Crown, on this aspect of the case.
According to the child's mother, the child told her on 26 December 1997 that the appellant "said it was all right to play with my man" and that the appellant "touched my man". He also referred to the appellant's man having been "crying" and said that the appellant "done a wee at the wreckers" and, the mother said, "that's when Terry's man was supposed to have cried and he had to get a rag and wipe it and that was in the truck"; none of this was mentioned to the police officer. There was no suggestion in the mother's evidence of any complaint that the appellant had taken the child's penis in the appellant's mouth. Further, when the child gave evidence at the trial he said in effect that the appellant touched his "private part" with his hand but did nothing else to it. The appellant has in his favour, on this aspect of the case, a degree of inconsistency in the child's account about the matter given to the police officer, but more importantly that he said nothing of it to his mother when describing what the appellant had done, and gave evidence at the trial which was irreconcilable with the assertion that the appellant had taken the child's penis in the appellant's mouth.
Lastly on this point, there is a difficulty relating to the circumstances in which the event occurred. In discussion with the police the child consistently said that the event happened in the appellant's truck. One passage was as follows:
Q:       Was he driving on the road at that time.
A:       Nuh when it was red he stopped.
Q:       He stopped and then he did it.
A:       Nuh, but it was green then he'd go and then he did it.
Q:       Oh, when he was driving along.
A:       Yeah.
Q:       Was he driving along the road.
A:       Yep.
Q:       He wasn't stopped.
A:       Nuh.
Q:       Okay.
A:       He did stop before when it was red.
Q:       He stopped when it was red.
A:       Yeah.
Q:       At the lights.
A:       Yeah.
Q:Okay. But when he did that was he driving the car. Was he going along or was he stopped.
A:       No he was driving a truck.
Q:       He was what.
A:       Driving the truck.
Q:He was driving the truck yeah. Remember when you said that he put your man in his mouth.
A:       Yeah.
Q:       Was the truck stopped or was it going.
A:       Going.
It would have been awkward but not impossible for the appellant to have got the child's penis in his mouth, while actually driving the truck, taking into account that the child was, according to the child's account, sitting in the truck beside the window, seatbelted. But the occurrence as described seems an improbable one. When one adds to that the circumstances that the child apparently made no complaint about this aspect to his mother and gave evidence at the trial positively inconsistent with it, one would have to doubt whether the child's claim about the matter, made to the police officer, represented the truth.
The appellant gave no evidence below; he says this was the course taken on his counsel's advice and was an erroneous course. The absence of any evidence from the appellant no doubt could have influenced the jury against the appellant. But it is unnecessary to pursue this issue - the appellant's complaint about the alleged advice to stay out of the witness box - further. This is so because the difficulties about acceptance of the evidence concerning the appellant's taking the child's penis in his mouth are such as to require this Court to hold the verdict on count 1 to be unsafe. And it must follow, in our opinion, that the other verdict should also be set aside, as the rejection of the first verdict, on the ground that in a major respect the child's evidence cannot be relied on, makes it impossible for the Crown to hold the second.
The appeal is allowed, both verdicts set aside and verdicts of acquittal entered.