R v Stretton

[2015] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stretton [2015] QCA 124

PARTIES:

R
v
STRETTON, Noel Allan
(appellant)

FILE NO/S:

CA No 25 of 2015
DC No 61 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Unreported, 9 February 2015

DELIVERED ON:

10 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2015

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant pleaded not guilty to six counts of indecent treatment of a child under 16, all concerning the same complainant – where the jury found the appellant not guilty on counts 1 and 6 – where the prosecution entered a nolle prosequi on counts 2, 3 and 5 – where the jury found the appellant guilty on count 4 – where the appellant contends that the guilty verdict on count 4 was unreasonable and inconsistent with the not guilty verdicts on counts 1 and 6 – where count 4 occurred when the appellant and the complainant were swimming at a swimming hole – where the complainant alleged that the appellant approached the complainant from behind, put his hands down her pants and put one of his fingers in her vagina – where the complainant’s evidence on counts 1 and 6 was at considerable variance with the case as opened by the prosecution on those counts – where the complainant’s evidence on count 4 was broadly consistent with the evidence as opened by the prosecution – whether the guilty verdict on count 4 can be logically reconciled with the not guilty verdicts on counts 1 and 6

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contends that the judicial directions did not adequately warn the jury that their assessment of doubt as to the complainant’s evidence on some counts may grossly affect their consideration of her evidence on other counts – where the appellant contends that a Markuleski direction should have been given to the jury – where the appellant’s trial counsel did not ask for that direction – whether a Markuleski direction should have been given – whether there has been a miscarriage of justice

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited

COUNSEL:

F Richards for the appellant
S J Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  The appellant pleaded not guilty to six counts of indecent treatment of a child under 16, all concerning the same complainant.  The jury found him not guilty on count 1, that, on a date unknown between 1 December and 24 December 1997, he wilfully and unlawfully exposed her to his indecent act.  Count 2 was that on 22 December 1997 he wilfully and unlawfully exposed her to his indecent act.  The prosecution entered a nolle prosequi on count 2 at the close of its case.  Count 3 was that on 24 December 1997 he unlawfully and indecently dealt with her.  The prosecution also entered a nolle prosequi on this count at the close of its case.  The jury convicted the appellant on count 4, that, on 27 December 1997 he unlawfully and indecently dealt with her.  Count 5 was that on 28 December 1997 he wilfully and unlawfully exposed her to his indecent act.  The prosecution entered a nolle prosequi on this count at the close of its case.  The jury found the appellant not guilty on count 6, that, on a date unknown between 1 December 1997 and 10 January 1998, he wilfully and unlawfully exposed her to his indecent act.

2. The appellant appeals against his conviction on count 4 on two grounds.  The first is that it was unreasonable as it was inconsistent with the verdicts of acquittal on counts 1 and 6.  The second is that the judge erred in not giving a Markuleski[1] direction and that this contributed to a miscarriage of justice.

   [1]R v Markuleski (2001) 52 NSWLR 82.

3. Before directly discussing these grounds of appeal, I will review aspects of the prosecutor’s opening address, and the evidence at trial and the judge’s directions to the jury.

4. At the time of the alleged offences the appellant and the 11 year old complainant and her family lived in a hostel in Townsville.  The complainant’s then boyfriend was the appellant’s eldest son.

   The opening address

5. The prosecutor, in his opening address, told the jury the complainant would give evidence that one day she went to the appellant’s room and asked him for a cigarette which he gave her.  He was sitting with his legs up wearing shorts with his penis out.  It was erect and he was masturbating.  The prosecutor added:

   “The Crown case is that this masturbation constitutes count 1.”

6. Sometime later on another day she saw the appellant:

   “standing in his room with his penis hanging out of the bottom of his shorts and, while she was there, [he] masturbated himself and said some things to her and said that he was horny.”

   This, the prosecutor stated, constituted count 2.

7. The complainant would tell the jury, the prosecutor said, that one day before Christmas the complainant was in the appellant’s room when he came up behind her and:

   “poked her in the middle of her bum.”

   This constituted count 3.

8. She would say, the prosecutor opened to the jury, that:

   “After Christmas [she] went swimming in Ross River with some friends and … the [appellant] touched [her] from behind and reached his hand up underneath and touched her on the vagina… she felt his finger and that it went in her vagina.  She moved, splashed him, and told him to fuck off.”

   This constituted count 4.

9. She would say that the next day she was in the room of the appellant’s partner when he told her to come to his room so he could show her something.  When she went to his room he asked if she wanted a cigarette and she took one.  He was sitting down and pulled his penis out of his shorts.  She left the room.  The pulling of his penis out of his shorts constituted count 5.

10. Count 6 was the last occasion when she went to his room to get a cigarette for a friend.  He refused but pulled his penis out of the bottom of his shorts.  He held his penis with one hand and with the other reached into his back pocket and pulled out a blue packet with “condom” on it.  He said he would use it on her.

    The evidence at trial

11. The prosecution case turned on the complainant’s evidence given at the trial in February 2015, over 17 years after the alleged offences about events which occurred when she was 11 years old.[2]  The complainant went to the appellant’s room to ask for cigarettes for her mother.  This “was the first time he had his private out…his cock hanging out of his shorts…with his left hand he was holding his cock while he was saying that he wanted to see me.”  She walked away (count 1 on which the jury found the appellant not guilty).

    [2]The appellant in para 2 of his written outline of argument stated that the complainant participated in a s 93A Evidence Act 1977 (Qld) statement but the appellant “did not honour his bail”.

12. On another occasion she went to his room for a cigarette.  He gave her one and as she left he said he wanted her to speak to another woman.  She said, “once again, he did have his – his cock hanging out of his shorts.”  That was all she saw.  She turned around and quickly walked away (count 2 which the prosecution subsequently discontinued).

13. She recalled another incident at a swimming hole where she was swimming with the younger girls.  The appellant arrived with his younger daughter.  His daughter swam to her and gave her a cuddle around the neck.  She told her to go to the shallow end.  At the same time the appellant approached the complainant from behind and put his hands down her pants.  She felt very frightened.  He stuck one of his fingers into her vagina.  He was right behind her.  He put his hand down her pants from behind towards her front.  She felt “disgrace and ugly”.  She moved away as quick as she could.  She flashed a whole heap of water towards his face and told him to “fuck off.”  He then moved away from her (count 4 on which the jury found the appellant guilty).

14. On another occasion she was doing some washing in the laundry area when the appellant approached her and offered to have sex with her.  He pulled out a blue condom packet and “was just like, wanking himself with his left hand.”  She could see his penis.  She told him “no” and walked off.  She tried to ignore him (count 6 on which the jury found the appellant not guilty).

15. When the prosecutor asked if she could recall any other time when she was alone with the appellant in his room or any other room, she recounted a time in the ladies’ bathroom and toilet.  She was having a shower with friends.  She saw the appellant peep his head through the window watching them.  She alerted the other girls and he “quickly vanished from the side”.  This evidence did not relate to any charged act.

16. The complainant gave no evidence to support count 3 or count 5 which the prosecution subsequently discontinued.

17. In cross-examination she said that the incident in the laundry happened about lunchtime shortly after Christmas.  He already had his penis out before he walked through the back door.  She saw it “just bobbing out.”  The incident was “very quick.”  She was shocked and walked off, acting as if she didn’t want anything to do with it.

18. She said that when she went into the appellant’s room he was wearing brown shorts with a white tie around them.  She saw his penis already “bobbing out” of his pants as soon as she saw him.  Defence counsel asked if, when she first saw him on the two occasions she went to his room for cigarettes, his penis was “bobbing out”.  She replied, “Well, not quite.  The other wasn’t and the other one was.  So basically he still had it the same way either way you put it.”

19. Defence counsel put to her that the appellant never touched her sexually.  She responded, “Well, you can believe what you believe.  I’m affected by that today and I’ve always did.”  Defence counsel put to her that the appellant did not approach her at the laundry, pull his penis out and start masturbating.  She responded, “Yeah, because people knew him as a liar back then too…he was playing with us young girls back then.”  She said that she told several people about what the appellant had done to her including Jennifer Santo.

20. In re-examination she was asked to clarify her answer as to whether on the occasions she went into the appellant’s room, his penis was out.  She responded:

    “Well, when he was – like, when there’s – when there were other mates with me, he wouldn’t do it.  Like, he won’t do it, obviously, but if it’s me approaching him by myself in his room or, like I said, in the laundry, he would do those things to me.”

21. Ms Jennifer Santo gave evidence that she lived at the hostel at the relevant time and knew the complainant and the appellant.  She grew up with the appellant in Charters Towers and knew his family.  In January or February 1998 she remembered the complainant telling her that the appellant “had flashed himself to her.”

22. The complainant’s birth certificate was tendered.  It showed that she was 11 years old at the time of the alleged offending.

23. The appellant did not give or call evidence.

    Relevant aspects of the judge’s summing up

    The judge’s directions to the jury

24. The judge’s directions to the jury included that they must consider the evidence of the complainant as to credibility and reliability with great care.  They could accept or reject parts of the evidence.  They must consider each charge separately, evaluating the evidence relating to that particular charge, to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved its essential elements.  They must return separate verdicts for each charge.  In effect, this trial was three trials in one.  Each charge is a separate trial requiring separate verdicts.  The evidence in relation to the separate offences was different and the verdicts need not be the same but they must be logical.  There was no room for compromised verdicts.  The prosecution case depended on the jury accepting the complainant as an honest and reliable witness.  Each charge depended on the jury being satisfied beyond reasonable doubt that the complainant was honest and reliable.

25. In explaining the elements of counts 1 and 6, the judge told the jury that they must be satisfied that the appellant deliberately or intentionally exposed the complainant to an indecent act.

26. The judge reminded the jury that they could not convict the appellant on any offence unless satisfied beyond reasonable doubt that the complainant was a truthful and reliable witness.  They must scrutinise her evidence with great care before arriving at a conclusion of guilt on any offence.  They should bear in mind that in this case the opening of expected evidence to be given by the complainant was different to the evidence she did give.  They should also bear in mind that at the time of the offences she was about 12 years old and was giving her evidence many years later.  But in any case they should scrutinise her evidence carefully before arriving at a conclusion of guilt on any charge.

27. In summarising the defence case, the judge reminded the jury of defence counsel’s contention about the differences between her evidence as given in respect of count 1 and the evidence opened by the prosecutor.  In relation to count 6, defence counsel emphasised that the complainant’s evidence was that this incident happened in the laundry, a public area of the hostel, in the middle of the day; her evidence was implausible.  The complaint to Ms Santo that the appellant flashed himself was not a complaint about the offences she now alleged in her evidence.  Defence counsel also said that her evidence about the incident in the swimming hole was implausible.

    Was the guilty verdict unreasonable as it was inconsistent with the verdicts of not guilty?

28. The appellant contends the guilty verdict on count 4 is unreasonable as it was inconsistent with the not guilty verdicts on counts 1 and 6.  The evidence on all three counts turned on the unsupported evidence of the complainant which concerned alleged offences in December 1997 or January 1998.

29. The success of that contention will turn in large part on whether the guilty and not guilty verdicts can be logically reconciled.  The evidence of the complainant on counts 1 and 6 was at considerable variance with the case as opened on those counts by the prosecution.  In particular, masturbation was opened as part of count 1 but she gave no clear evidence of masturbation.  Count 6 was opened as occurring in his room, whereas in her evidence she said it happened in the communal laundry.  By contrast, the complainant’s evidence on count 4 was broadly consistent with the evidence as opened by the prosecution.  This is a compelling, logical explanation for the differing verdicts.

30. Further, the jury were told that, in respect of counts 1 and 6, they must be satisfied beyond reasonable doubt that the appellant deliberately committed the indecent acts constituting counts 1 and 6 before convicting the appellant.  They may have considered it a reasonable possibility that the appellant was not deliberately exposing himself to her when the complainant came upon him on the occasions relied on to constitute counts 1 and 6.

31. It follows that the jury’s verdicts are logically reconcilable and are not inconsistent and the jury performed its function as required: MacKenzie v The Queen.[3]The jury’s reasoned doubts about the complainant’s evidence on counts 1 and 6, which did not apply to her evidence on count 4, did not require the jury to reject her evidence on count 4.  Nor did her failure to give evidence about counts 2, 3 and 5 require the jury to reject her evidence on count 4.  It was understandable that she may forget events, even significant ones, which occurred when she was 11 years old, over 17 years ago.

    [3](1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ, 367.

32. After reviewing the whole of the evidence, even in the context of the varying verdicts and her failure to give evidence of counts 2, 3 and 5, I am satisfied that it was open to the jury to convict the appellant on count 4.  This ground of appeal is not made out.

    Did the absence of a Markuleski direction contribute to a miscarriage of justice?

33. The appellant contends that the judicial directions did not adequately warn the jury that their assessment of doubt as to the complainant’s evidence on some counts may grossly affect their consideration of her evidence on other counts.  The prosecution’s decision not to proceed further on counts to 2, 3 and 5 and the jury’s verdicts of acquittal on counts 1 and 6 showed that her evidence was deficient in many respects.  Her evidence was unsupported.  The jury’s conclusion not to accept her evidence on counts 1 and 6 ought to have damaged her credibility on count 4.  In the circumstances the judge should have given the jury a Markuleski direction to address the potential for resulting unfairness.  The appellant contends that the failure to do so has deprived him of the chance of an acquittal.

34. Counsel for the appellant at trial did not ask for a direction of the kind now sought on appeal.  This is not surprising in light of the judge’s careful directions.  His Honour emphasised that the jury must scrutinise the complainant’s evidence with great care before convicting on any offence. The judge made clear to the jury that they must consider the evidence on each count separately in determining whether the elements of each count were proven by the prosecution beyond reasonable doubt.  As I have explained, there was a logical explanation for the differing verdicts so that, unlike Markuleski, this was not a case where the jury was required to acquit on count 4 in light of their acquittals on counts 1 and 6.  It was also significant that the judge emphasised to the jury that their verdicts must be logical and there was no room for compromised verdicts.  The jury, in this case, can be taken to have followed those directions.  In light of the evidence and the judge’s careful and thorough directions, and in the absence of any request by defence counsel for a Markuleski direction, I am unpersuaded that its omission has contributed to a miscarriage of justice.

    Conclusion

35. As the appellant has not made out either of his grounds for appeal, the appeal against conviction must be dismissed.

36. GOTTERSON JA:  I agree with the order proposed by McMurdo P and with the reasons given by her Honour.

37. MORRISON JA:  I have read the reasons of the President and agree with those reasons and the order her Honour proposes.