R v Stephenson

Case [2022] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stephenson [2022] QCA 78

PARTIES:

R
v
STEPHENSON, David John
(appellant)

FILE NO/S:

CA No 278 of 2020
DC No 150 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 12 November 2020 (Rinaudo DCJ)

DELIVERED ON:

17 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2022

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTAGLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of maintaining a sexual relationship with a child under 16 years, a domestic violence offence and one count of common assault, a domestic violence offence – whether it was open for the jury to accept that the complainant was a reliable and credible witness – whether the evidence was such that is was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences – whether the appeal should be allowed

R v Maguire[2021] QCA 203, cited
R v Miller[2021] QCA 126, cited

COUNSEL:

The appellant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the order proposed by his Honour.

  2. MORRISON JA:  The appellant was convicted after a three-day trial on two counts:

    (a)Count 1 – maintaining a sexual relationship with a child under 16 years, a domestic violence offence; and

    (b)Count 2 – common assault, a domestic violence offence.

  3. The complainant in each case (COM) was the son of the appellant’s sister’s de-facto partner.  COM was aged between five and seven years old at the time of Count 2.

  4. Particulars of the maintaining were supplied.  They alleged that between 3 January 2016 and 8 August 2018 the appellant maintained a sexual relationship with COM by carrying out the following acts on or with COM:

    (a)had a bath with him;

    (b)exposed his penis to COM;

    (c)touched COM’s penis;

    (d)had COM touch the appellant’s penis;

    (e)had COM touch the appellant’s bottom;

    (f)touched his (the appellant’s) penis in front of COM; and

    (g)pulled down COM’s pants.

  5. The particulars of the common assault charge were that the appellant smacked COM on the arm with his hand.

  6. The appellant challenges his verdicts on all counts, on the ground that the verdicts were unreasonable and not supported by the evidence.

    Applicable principles

  7. The principles to apply when a verdict is challenged on the basis that it is unreasonable are well known.  They were summarised in R v Maguire:[1]

    “[16]     In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen requires that this Court perform an independent examination of the…

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AGLC
R v Stephenson [2022] QCA 78
Case
[2022] QCA 78
Decision Date

CaseChat Overview and Summary

The appellant, who was convicted of maintaining a sexual relationship with a child under 16 years, a domestic violence offence, and one count of common assault, a domestic violence offence, appealed against his conviction. The appeal centred on the reliability of the child complainant, referred to as COM, and whether the evidence was sufficient for a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences. The court had to determine if it was open to the jury to accept COM as a reliable and credible witness, and if the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences.

The court found that there was no merit in the appellant's argument that COM's credibility was compromised by inconsistencies in his evidence. The court held that some inconsistencies did not affect the substance of COM's account, and that the lies told by COM at school were typical of a young child trying to avoid trouble. The court further held that COM's behavioural issues, if any, did not necessarily compel rejection of his evidence concerning the sexual abuse. The court also found that it was open to the jury to accept COM as a credible and reliable witness, supported by the preliminary complaint evidence, and the mother’s evidence.

The appeal was dismissed, and the convictions were upheld. The court held that the jury was well placed to assess the credibility of COM and that the evidence was sufficient for a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

COM was about seven and a-half years old, and in year two, when he was interviewed by police. He told the police interviewer that:(a)he and the appellant “normally had baths together and it’s not the right thing to do”; he qualified that saying, “That’s what my step-mum said”;[3][3]Interview transcript, page 6 line 37.(b)he and the appellant would undress and then “touch our … parts, like I touch his parts, he touches my parts, he touches his parts, and I touch my parts”;[4][4]Interview transcript, page 6 lines 48-55.(c)the activity was limited to touching each other’s “parts” in the way he described;[5][5]Interview transcript, page 7 lines 1 and 18.(d)he told his mother “the secret that my uncle told me not to tell”;[6][6]Interview transcript, page 7 line 13.(e)it “normally happens every time I’m there”;[7][7]Interview transcript, page 14 line 39; page 15 line 16.(f)the last time something happened was when the appellant pulled COM’s pants down and then his own pants down, so they were naked; nothing else happened;[8][8]Interview transcript, page 15 lines 18-54.(g)that when the appellant and COM got undressed, “he normally just touches them … he doesn’t do anything else”;[9][9]Interview transcript, page 17 lines 1-10.(h)on occasions COM would take all his clothes off, and “normally [the appellant] takes them off after me”;[10](i)the appellant touched COM’s “parts” with his bare hands; COM did not want to use the real name for the “parts”;[11](j)when the appellant touched his own parts they were the “same parts I said”;[12] COM said that the appellant “fiddles around with them”, meaning he “flicks it”; he identified that part as the “doodle”, which he said “goes up and down” when the appellant flicked it;[13] he described the doodle as the part used to pee;[14](k)the appellant had told him not to tell anyone “or else I’ll be in big trouble”;[15](l)when COM told his mother, the appellant overheard it;[16] the appellant “Got up me” … “Cause he knew it wasn’t the right thing to do”; the appellant smacked him on the arm;[17](m)when he told his mother she asked, “is it like about doodle and butt?”, and COM said yes;[18](n)he told his mother because, “Well, she normally does it with me as well” … “Cause we normally just have showers together”;[19](o)that COM and the appellant had fun together playing with each other’s parts while naked;[20] it happened “all the time when I go over to his house”;[21](p)it started when COM was about five;[22] the appellant taught COM how to touch his parts;[23] and(q)the appellant had not done anything beyond touching each other’s parts.[24][10]Interview transcript, page 17 lines 22-57.[11]Interview transcript, page 18 lines 8-36.[12]Interview transcript, page 18 lines 40-51.[13]Interview transcript, page 18 line 53 to page 19 line 30.[14]Interview transcript, page 19 lines 38-57.[15]Interview transcript, page 20 lines 13-31.[16]Interview transcript, page 20 line 57 to page 21 line 21.[17]Interview transcript, page 22 line 30 to page 23 line 16.[18]Interview transcript, page 22 lines 1-6.[19]Interview transcript, page 22 lines 22-28.[20]Interview transcript, page 23 lines 49-56.[21]Interview transcript, page 24 line 20.[22]Interview transcript, page 25 lines 1-10.[23]Interview transcript, page 26 lines 21-43.[24]Interview transcript, page 26 line 50.Oral evidence

Decision

Reasons for decision

The appellant also complains that the police have not investigated COM’s mother in respect of an alleged assertion by COM in his police interview.[82] There is no merit in this point.[82]Appellant’s outline, final paragraph.Conclusion Nothing raised by the appellant compels the conclusion that it was not open to the jury to accept COM as a reliable and credible witness. His evidence contained various inconsistencies, but these were thoroughly examined at the trial and the jury were well placed to assess them. Some of them are matters that do not go to the substance of the account told by COM. For example, not identifying a photo of the house as being the front as opposed to the back, getting the number of the house wrong, being unsure as to the precise sequence of peripheral events, and not being sure whose phone was used to call. The submission that the police interviewer was the first to use the word “secret” when speaking to COM, and that COM then incorporated it into his account, does not correspond with the evidence that the jury could accept; see paragraph [35]. The jury could well conclude that the attack on COM’s credibility and reliability based on his lies was not decisive. The lies told at school were the lies of a very young child and told to escape trouble at the hands of an authority figure. Furthermore, the incidents of lying at school showed that COM did, in fact, understand the difference between the truth and lies. The jury’s life experience may well have been that many young children tell such lies, but it does not mean they are untruthful when it comes to serious matters such as being sexually assaulted. Further, that COM exhibited some behavioural issues was not something that necessarily compelled rejection of his evidence when that evidence concerned what had been done to him by the appellant. The timing of the behavioural issues was when he was very young and around prep year at school. There was no expert evidence as to the behaviour itself, nor what that behaviour signified. Ultimately the suggestion that it might be a signifier of child abuse was ambiguous in the sense that it was second-hand evidence, and open to the possibility that it was the appellant’s conduct that was the cause. The description of COM by X was something the jury could have accepted as a rational description of a fairly normal young boy: “he was a ratbag of a boy but he wasn't doing any of the stranger things. Just general boy stuff.” In my view, it was open to the jury to accept COM as a credible and reliable witness. He showed no evident propensity to embellish; several times he was pressed in the interview as to whether the conduct went beyond touching, and each time he said it did not. His account to the police was consistent with the oral evidence in terms of what was done and by whom and where. He freely admitted lying to teachers and why he did so. And, his credibility was supported by the preliminary complaint evidence, especially the phone recording, and the mother’s evidence that COM had a secret he wanted to tell. It was open to the jury to accept the mother’s evidence that she was not the one who suggested the words “doodle” and “bum” when speaking to COM.

Ratio Decidendi

Legal Principle Established

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