R v Oldham

[1993] QCA 430

IN THE COURT OF APPEAL [1993] QCA 430

SUPREME COURT OF QUEENSLAND

C.A. No. 243 of 1993.

Brisbane

[R v. Oldham]

T H E Q U E E N
v.
KEVIN CHARLES OLDHAM

Appellant

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The President
Pincus J.A.

Thomas J.

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Judgment delivered 27/10/93
JUDGMENT OF THE COURT
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APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.
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CATCHWORDS:	CRIMINAL LAW - rape - indecent dealing with a girl under 14 years - alleged offences occurred when the girl was aged between 8 and 12 - complaint not made until she was almost 19 - whether failure to complain made the verdict unsafe - whether complainant's evidence was so inconsistent as to make the verdict unsafe and unsatisfactory.
Counsel:	Mr A Rafter for the Appellant. Mr P Callaghan for the Crown.
Solicitors:	Legal Aid Office for the Appellant. Director of Prosecutions for the Crown.
Hearing Date:	11 October 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 243 of 1993.

Brisbane

Before The President
Pincus J.A.
Thomas J.

[R v. Oldham]

T H E Q U E E N
v.
KEVIN CHARLES OLDHAM

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/10/93.

The appellant appeals against his conviction of a number of offences in relation to a young girl born on 18 April 1973; he also asks for leave to appeal against sentence. There were two convictions of unlawfully and indecently dealing with her, and two of rape. The evidence included allegations of numerous other sexual dealings with the girl over a period of about four years, beginning when she was eight years of age. The jury were invited to take the evidence about sexual offences other than the four charged into account, when considering their verdicts with respect to those four. Further, the judge took the additional allegations into account on sentence. No complaint was made below about the admission in evidence of the additional allegations or their having been used in the way we have mentioned; nor is that aspect of the matter complained of before us. At the trial and on appeal the appellant has relied on inconsistencies in the complainant's evidence, both with respect to the four charged incidents and with respect to others.

Although then counsel for the appellant suggested to the complainant at the trial that accident might have been explanation for certain of the allegations of sexual interference which she made, the appellant's case there was that the complainant's story was simply untrue. However, it was not controverted by evidence; the appellant neither gave nor called any.

The learned trial judge ruled that the evidence of the complainant was uncorroborated. The complainant's father gave some evidence which supported the complainant's story in some respects, but not, except as to one matter, in any way which appears to have significance. That point is further discussed below.

After numerous acts of sexual interference from about the age of eight to about the age of 12, according to the complainant's evidence, the appellant desisted, except that he attempted to deal with her sexually once when she was 15. She first made complaint of what he had done in February 1992, when she was almost 19 years of age. There was a substantial gap in time - 10 years or more - between the time when, according to the complainant's evidence, the appellant's sexual interference with her began and that first complaint. Counsel for the appellant, Mr Rafter, contended that although one would expect a degree of inconsistency and uncertainty as to details in those circumstances, the extent to which the complainant changed her version of events from time to time was such as to make the verdicts unsafe. That was the principal contention; Mr Rafter also relied upon the failure of the complainant to tell anybody about the appellant's misconduct during the years when it occurred, and the failure to do so for years after that.

The Crown case - and this point did not appear to be disputed - was that the appellant was, during the years the subject of the complainant's allegations, a close friend of her family and was known to her as "Uncle Kevin". The complainant said that she developed an affection for him which continued even up to the time of trial. The allegations of sexual acts included acts of vaginal intercourse; the appellant placing a finger, and on occasions keys, in the complainant's vagina; causing the complainant to have oral sexual intercourse and other less serious acts of sexual interference.

Absence of Complaint

The complainant's evidence about this part of the case was rather complex. She claimed to have been influenced by affection for the appellant, in not complaining of his conduct, and also by a lack of consciousness that what the two were doing together was wrong. Also, she appears to have placed reliance upon the appellant's having urged her to secrecy as a reason for not having reported what he was doing.

There is no doubt that the complainant had opportunity to tell her parents about the appellant. She gave, for example, evidence of an act of sexual intercourse when she was about 12 years of age, saying that it took place in a disused laundry at the home of the appellant and his family one afternoon when a social event - a barbecue - was being held there. After the two had sexual intercourse, according to the appellant, her father came to the disused laundry and said something like "What's going on?". The complainant said that she told her father, as the appellant had previously warned her to do, that "We're looking at the walkie-talkies", being a reference to part of the contents of the disused laundry. It is convenient to add that this aspect of the complainant's story received some support from the father's evidence, although in points of detail that differed from what the complainant said. The father gave evidence that he came to the disused laundry during the afternoon of the barbecue and saw the appellant and his daughter there both appearing then to be "very strange"; he said they looked distressed and flush-faced. Neither of them said anything "they just gapped (sic) at me". The father then took his family home, it appears, straight away.

If the complainant's version was true, her father came upon the appellant and herself shortly after the two had had full sexual intercourse; she said nothing to him about it. Her evidence was, in general, that although she loved the appellant and liked the hugs and kisses, his having intercourse with her hurt and was distasteful to her. The acts of intercourse, it appears, were all alleged to have occurred well before the complainant reached puberty. One might perhaps expect the complainant to have been able convincingly to complain to her father, if ever, on the occasion just discussed, when it appears that the father found the two of them in circumstances consistent with some improper act having occurred or being contemplated.

Mr Rafter also pointed to the complainant's evidence of her contact with a counsellor at a hospital where she was apparently receiving some treatment; the precise date of that is unclear, but seems to have been when the appellant was an adult. The complainant admitted that she did not confide in the counsellor, that she misled her about a number of aspects of her life, but told the counsellor she had been sexually abused. However, the complainant was not then candid, because she only partially revealed the alleged abuser's identity - giving the appellant's first name correctly, but lying about his surname; she said "I was protecting him right up until I went to court". The complainant, on being asked at the trial why she changed her mind, said that she was "absolutely terrified for his daughter, Juanita". She said "He's got a 10 year old daughter. What's he doing to her?". When cross-examining counsel suggested to her that evidence she gave was fantasy, or a lie, she said "It's the truth. I've nothing to gain out of being here, I'm here to help other young girls".

Although the complainant's account of her reason for her failure to complain was rather variable, and that must be considered when looking at the general reliability of her evidence, the lateness of her complaint does not in itself necessarily throw doubt upon her veracity. It is likely that a story of this general kind - one of serious sexual abuse of a child over a period of years - will have as an element that the child did not complain, or at least did not do so with any persistence; that is so because one would expect that a sufficiently vociferous complaint would in most instances put an end to the abuse. Yet it seems that it is not uncommon for children to be sexually abused over a period of years in quite serious ways.

We think it was open to the jury to act on the view that the complainant's not having complained earlier than she did was capable of explanation and that the explanations she gave were not such as necessarily to oblige them to treat the substance of her evidence as false.

Inconsistencies

Mr Rafter submitted in effect that while one would not expect perfect consistency in such a case as this, a point may be reached at which the number and degree of inconsistencies are too great to allow the verdicts to stand. We agree with that, but it has to be confessed that it is not easy to define how much inconsistency is, so to speak, permissible.

It is our opinion that a reading of the record of the complainant's evidence does not leave one with the impression that the inconsistencies to which she admitted, and those which were put to her, were destructive of her credit. She seemed to have difficulty in distinguishing between the precise nature of the sexual acts done by the appellant on one occasion and those done on another occasion. In some important ways her version of events changed between the time of the committal proceedings and the trial 13 months later. She said that her recollection at the date of trial was better because, as we understood it, she had thought about the events in the period leading up to the trial, whereas in the years before she chose to complain (in February 1992) about the appellant's conduct, she had tried to put the events out of her mind.

It is desirable to give some examples of the types of inconsistencies relied on by Mr Rafter.

As to the second count of rape, based on the incident in the disused laundry referred to above, the complainant gave evidence that the appellant closed the door of the laundry and said that she thought that her father had opened it and walked in. Mr Rafter pointed out that the father said that he could see into the laundry because the door was open. Again, she claimed to recall that her father said "something along the lines of 'What's going on?'", whereas her father denied having said that. It does not seem to us that inconsistencies of this kind, dealing with an event which occurred some 9 years before the trial, make the substance of the account suspect. Of course, the explanation for the discrepancies may simply be that the father's recollection is faulty.

More striking points, with respect to the same incident, were that at the committal proceedings the complainant said the appellant, at one stage, got angry and "started getting really rough". At the trial the complainant said that on that occasion the appellant did not get angry; she explained that she thought she was getting the incident confused with another one, of which she gave evidence, in the living room of a house. She also said that the appellant was gentle when dealing with her in the disused laundry.

Another category of inconsistencies may be generally described as having to do with the appellant's method of exposing the complainant's vagina. As to one incident, the complainant said at committal that her track suit pants were removed before she got on the bonnet of a car and was dealt with sexually; at the trial she said she thought that the appellant pulled her pants down while she was on the bonnet. There are also instances of the complainant's being apparently uncertain as to whether her underpants were actually taken off or merely moved to one side. In our opinion these are not matters of great moment, nor would a reasonable jury necessarily expect that a truthful complainant would have identical recollections of the way in which the appellant dealt with her clothing, when asked about the subject at committal and at trial.

Then, there was considerable cross-examination dealing with a measure of inconsistency with respect to the frequency of sexual intercourse during a particular period; that was when the appellant and his family stayed with the complainant's family for about six weeks, the complainant being about 10. The complainant's story was that during that period she slept in an area next to her parents' bedroom, but separated from that room by french doors covered by drapes. At the trial, the complainant said that the appellant came to see her at night during the period in question, about three or four times a week, and had intercourse with her, oral or vaginal - sometimes, but apparently not always, performing ejaculation. At the committal hearing she had said in effect that this occurred about twice, but in some weeks three times, a week. Further, at the committal hearing she said there were weeks in which intercourse may have happened only once, whereas at the trial she said that there was no week in which that was so. The complainant explained this discrepancy by saying that her memory was clearer at the trial. We do not comment upon the point other than to say that these events were, on the complainant's version, distressing to her and had occurred about eight years prior to the trial. The difference in her recollection on the two occasions is not very surprising.

Some other points should be mentioned in this connection. It was put for the appellant at the trial, although not much was made of it on appeal, that sexual interference allegedly took place on occasions at which one would have expected those in the vicinity, such as the complainant's mother and father, to notice that it was going on. Alternatively, it was suggested that the circumstances in which some of the interference took place were of a kind to making discovery a high risk. The complainant's answer to that sort of suggestion was that the appellant had become adept at concealing his interference with her. At first sight, there is a degree of implausibility in the idea that a family friend would expect to get away with a concealed insertion of a finger in the complainant's vagina, with her parents close by; yet the complainant asked the jury to accept that the appellant did just that, on more than one occasion, and we are unable to conclude that the jury could not properly accept her.

To revert to a point touched on above, the appellant seeks to rely upon some inconsistency with respect to the reasons given for failure to complain. This may be illustrated by evidence the complainant gave in cross-examination. She agreed that up to the time when intercourse was had in the disused laundry she did not believe that what the appellant was doing to her was wrong, but she said that the appellant warned her not to tell anyone. She also said that she was protecting the appellant because she loved him - which implied that she thought that he needed protection.

Although these passages are capable of being read as inconsistent, they are not necessarily so, and appear to us to be representative of the complainant's efforts to explain her state of mind at different periods of time. Further, one should not assume that a girl who has been subjected to sexual abuse at a rather young age will, quite some years later, be able accurately to analyse her own mental condition during the occurrence of the offences and subsequent to them.

It should be added that no particular motive for false complaint appeared; there was no dispute between the two families; nor was any personal advantage which might accrue to the complainant from conviction of the appellant able to be suggested.

In our opinion, some of the inconsistencies to which Mr Rafter pointed were weaknesses in the Crown case, as perhaps was the long absence of complaint; but the prosecution's evidence does not have to be seamless, to entitle the jury to accept it as substantially true. We have been unable to conclude that the deficiencies relied on by the appellant were of such a nature and degree as to require the verdicts to be set aside; on the contrary, we would on the whole of the record classify the convictions as being, fairly clearly, safe.

Sentence

The judge described the appellant as having "systematically debauched" the complainant over a period of time and expressed the opinion that his conduct was a betrayal of the trust which the complainant and her family had reposed in him. He said the appellant's sexual interference with the girl occurred under "conditions which could only be described as brazen and audacious in the extreme". In his Honour's opinion the complainant was "seriously emotionally disturbed by the awful recollection of things past" - an impression he gained from observation of her in the witness box.

The judge took into account the fact that the appellant had no previous convictions, had been in steady employment throughout his adult life and had been a provider for his family; he was, at the trial 42 years of age, with four children aged from 18 years to 10.

The sentence imposed in respect of each of the rape convictions was 8 years; for the first indecent dealing conviction he was sentenced to 6 months imprisonment, and for the second 18 months imprisonment. It was not contended that the sentence of 8 years imprisonment was beyond the range of what might reasonably be imposed and we can see no basis upon which the Court could interfere with it.

A more difficult question is whether the judge should have recommended that the appellant be considered for parole at some earlier date than half way through the sentence. That is sometimes done where the sentencing judge forms the conclusion that the convicted person is likely to respond well to parole, but of course other circumstances might justify such a favourable recommendation, e.g. remorse. It appears that the judge was much influenced by the notion that it was necessary for the sentence to reflect proper denunciation of the offences;

his Honour regarded the case as a bad one. We do not think his Honour erred in his approach, nor are we able to come to the view that the case for shortening the non-parole period was compelling; that is, both the head sentence and the absence of any recommendation for early parole were within the scope of a proper exercise of sentencing discretion.

The appeal against conviction will be dismissed and the application for leave to appeal against sentence refused.