R v Passey - [1992] QCA 436

COURT OF APPEAL [1992] QCA 436

McPHERSON JA
DAVIES JA

DERRINGTON J

CA No 255 of 1992

THE QUEEN
v.

MICHAEL PASSEY Appellant

BRISBANE

..DATE 02/12/92

JUDGMENT

021292 D.1
McPHERSON J: This is an appeal by Michael Passey against conviction
at his trial in the District Court at Maroochydore in respect of the
offences (1) of wilfully exposing his private parts in a public
place and (2) assaulting the complainant Sommer Jean Maloney.

The sentence imposed was probation for 2 years. There is no appeal against that.

The place where the offences were alleged to have been committed was the surf beach at Mooloolaba and the date was 3 November 1991, which was a Sunday. The complainant Sommer is a girl who at that time was

10 years old, and by the time of the trial was 11. She said that at
about 2.45 p.m. on that day she was in the water at the beach with
her friend Jodie Walk, when she saw a man she later identified as
the appellant pull his swimming togs down and exposing part of his
penis. She decided to return to the beach from the water and dived
under an incoming wave. When she came up the appellant grabbed her
around the back and attempted, as she thought, to interfere with her
togs where they were tied behind. She said that about 3 minutes
elapsed between the 2 incidents.

At the trial the Judge directed the jury that before convicting they would have to be satisfied that acts of the kind described had taken place. In fact there was no specific challenge to the Crown case on this aspect which meant, in effect, that the critical question for

the jury was whether it was the appellant who committed the offence
or someone else. The jury found that it was the appellant.

There are 2 grounds of appeal against the convictions. The second is that the trial Judge's directions to the jury concerning the identification evidence were inadequate. The complaints are that he failed sufficiently to isolate or identify matters tending to undermine the identification evidence against the appellant, and also that he did not lend his judicial authority to strictures by the defence on the evidence that was given at the trial on behalf of the Crown.

The first of these complaints is, in my opinion, quite unsustainable. The summing up which was thorough and fair was, if anything, in many respects favourable to the appellant. The trial Judge gave appropriate and adequate warnings about the risks of relying on the testimony of young children in charges of sexual offences and hence of the desirability of corroboration. He explained the concept of corroboration and also that the only evidence capable of constituting corroboration, which was that of Jodie Walk, should be approached with caution because both primary witnesses were children, who might have been mistaken, or were liable to misinterpret the acts about which they testified.

He emphasised that unless the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Passey

Details

AGLC: R v Passey [1992] QCA 436
Case: [1992] QCA 436
Decision Date: 2/12/1992

CaseChat Overview and Summary

The Court of Appeal in this case considered an appeal by Michael Passey against his conviction at the District Court at Maroochydore for the offences of wilfully exposing his private parts in a public place and assaulting Sommer Jean Maloney. The appeal focused on two grounds: the adequacy of the trial Judge's directions to the jury concerning identification evidence and the safety and satisfaction of the guilty verdicts. The location of the alleged offences was the surf beach at Mooloolaba on 3 November 1991, when the complainant, Sommer, was 10 years old. Sommer and her friend Jodie Walk witnessed the appellant exposing himself and subsequently being assaulted by him. The trial judge directed the jury that they must be satisfied beyond reasonable doubt that the appellant committed the offence.

The appeal raised concerns about the trial Judge's handling of the identification evidence. The appellant argued that the trial Judge did not adequately isolate or identify matters that undermined the identification evidence against him. However, the Court found that the trial Judge provided a thorough and fair summing up, including appropriate warnings about the risks of relying on young children's testimony and the desirability of corroboration. The trial Judge also highlighted the need for the jury to be satisfied that Sommer's evidence was intrinsically credible.

Furthermore, the Court found that the trial Judge had sufficiently addressed the weaknesses in the identification evidence, as required by the decision in Domican v. The Queen. The trial Judge recounted the defence's arguments and directed the jury to consider the alleged weaknesses in the identification evidence when assessing the credibility of the witnesses. The Court concluded that the trial Judge had fulfilled his duty to isolate and identify any matter of significance that may reasonably be regarded as undermining the reliability of the identification evidence.

The appeal also argued that the guilty verdicts were unsafe and unsatisfactory. However, the Court found that the jury had ample scope and evidence to decide the matters against the appellant. The critical issue was the cogency of the visual identification by Sommer on the day of the offence, which was supported by the complainant's detailed description of the appellant and the circumstances of the incident. The Court concluded that it lay within the province of the jury to find that the appellant was the offender.

The Court of Appeal dismissed the appeal against conviction, with all three judges concurring. The appeal is dismissed.

Orders