R v. P

[1998] QCA 290

[1998] QCA 290

COURT OF APPEAL

McMURDO P
PINCUS JA
MACKENZIE J

CA No 417 of 1997

THE QUEEN

v.

P  Appellant

BRISBANE

DATE 11/08/98

JUDGMENT

THE PRESIDENT:  The appellant was convicted in the District Court at Cairns after a trial on 14 October 1997 of one count of indecent treatment of a child under 12 with a circumstance of aggravation (count 3).  The appellant had pleaded guilty to one count of indecent dealing with a girl under 14 (count 2) and not guilty to maintaining a sexual relationship with a girl under 12 with a circumstance of aggravation (count 1); two counts of indecent treatment of a child under 12 with a circumstance of aggravation (counts 3 and 5) and one count of wilfully exposing a child under 12 to an indecent act (count 4).

The complainant, in each instance, was his niece.  The jury found the appellant guilty on count 3 but was unable to reach a verdict on counts 1, 4 and 5.  The learned trial Judge discharged the jury after about three hours' deliberation, without giving a direction in terms of R v. Black (1993) 179 CLR 44.

The only ground of appeal is that the conviction on count 3 is unsafe and unsatisfactory having regard to the jury's inability to reach verdicts on counts 1, 4 and 5.

The facts in respect of count 3 were that on a date unknown between 3 July 1989 and 31 December 1990 the accused lay on top of the complainant when they were both naked in the shower.  The complainant was under 12 at the time being born on 11 August 1991.  This was a specified circumstance of aggravation as was the fact that she was in the accused's care at the time because he was baby-sitting her.

The complainant gave evidence supporting count 3.  The appellant gave evidence denying that it occurred.  The learned trial Judge dealt carefully with the requirements of proof in respect of count 3 and in respect of counts 4 and 5, the other specific offences.  He told the jury that they must be satisfied beyond reasonable doubt that the complainant's evidence on each specific count was true before they could convict on any count.

His Honour gave careful directions, including his directions after an application for redirection, to the jury in respect of count 1, the offence of maintaining a relationship of a sexual nature with a girl under 12 with a circumstance of aggravation.  His Honour carefully drew a distinction between the use to be made of generalised evidence of a sexual nature from the complainant in respect of count 1 and the use to be made of it in respect of the specific offences, counts 3, 4 and 5.  The jury was warned that the plea of guilty in respect of count 2 should not be used to infer the guilt of the accused in respect of other charges.

In respect of count 4, which was alleged to have occurred on a date unknown between 1 January and 30 September 1991, there was evidence from the complainant's aunt that supported the appellant's version that this offence did not occur as outlined by the complainant.  The aunt could recall only one incident where the complainant visited her in the night-time and on that occasion the complainant's grandmother was in the appellant's car.

Count 4 was alleged to have occurred when the appellant was driving the complainant to his mother's place on a date unknown between the specified dates.  The complainant's aunt's version was also supported by evidence from the complainant's grandmother.

Count 5 alleges that the complainant, between 1 January 1992 and 31 December 1992, in a bathtub was told by the appellant to suck his penis and he put his fingers into her vagina.  The complainant's brother A saw the complainant in the hallway as she left the bathroom and commented on this as he was aware that the appellant was in the bathroom.  A later spoke to the complainant's mother.  The accused gave evidence that there was an innocent explanation as to how he and the complainant came to be in the bathroom at the same time:  she was simply keen to have the next bath after him and before her brother A.

A’s evidence suggested the incident that he observed occurred in about April, closer to the appellant's claim that it occurred towards the beginning of the year, rather than the complainant's claim that it occurred towards the end of the year.  The complainant's mother gave evidence that it was very rare for the appellant to baby-sit her children at this time.

The complainant's evidence in respect of count 5 was that apart from the one incident in the bathroom, for which he had an innocent explanation, he did not baby-sit at the complainant's home during the periods alleged.  This was supported by evidence from the appellant's mother.

The evidence that I have set out in respect of counts 4 and 5 was also set out by the learned trial Judge in his summing-up.  The jury, or some of them, could then have had doubts about counts 4 and 5, but not had the same doubts in respect of count 3.  If some jurors had doubts about counts 4 and 5, it is understandable they could have similar doubts in respect of count 1, the maintaining charge, which necessitates unanimous satisfaction as to at least three offences of a sexual nature occurring during the period of the relationship.

In Mackenzie v The Queen (1996) 71 ALJR 91, at 101, Gaudron, Gummow and Kirby JJ approved the test applied by Devlin J in R v. Stone, unreported, 13 December 1954.  Where there is an allegation of inconsistency of verdicts it is for the appellant to "satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion and, once one assumes that they are an unreasonable jury, that they could not have reasonably come to the conclusion, then the convictions cannot stand".

To warrant setting aside different verdicts, the verdicts must be an affront to logic and commonsense (Mackenzie at 101) or that intervention is necessarily required to prevent a possible injustice (Mackenzie 102).  The obligation to show inconsistency is on the appellant (Mackenzie 102).

Some doubts may have been raised with some jurors as to the complainant's evidence in respect of counts 4 and 5 and consequentially also count 1.  It is completely logical that similar doubts may not have been raised in respect of count 3.  It is therefore logically possible that the jury were satisfied beyond reasonable doubt as to count 3 but that some jurors were not so satisfied in respect of the remaining counts.

The jury observed the witnesses and the contest was largely one of credibility between the complainant and the appellant.  There was other evidence, namely the accused's guilty plea to count 2 and his own testimony that he improperly touched the complainant in the shower during a period earlier than that stated in count 3 which the jury could have taken as supporting the complainant's evidence.

There is no reason to believe that any miscarriage of justice has occurred in this case.  The appellant has failed to show the verdict on count 3 was inconsistent with the jury's inability to reach a verdict in respect of counts 1, 4 and 5 and therefore that the verdict in respect of count 3 should not stand.  I would dismiss the appeal.

PINCUS JA:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed.