R v T

[2001] QCA 540

[2001] QCA 540

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 252 of 2001

THE QUEEN

v.

T.  Applicant

BRISBANE

..DATE 27/11/2001

JUDGMENT

THE PRESIDENT:  The appellant was convicted in the District Court at Rockhampton of five counts of indecently dealing with a child under 12 years and two counts of attempted carnal knowledge of a child under 12 years.  He appeals against his conviction on the grounds that it is unsafe and unsatisfactory.

The case against the appellant turned solely on the evidence of the complainant who was 14 at the time of trial and aged between three or four and 10 or 11 when the offences occurred. During that period the appellant was from time to time the partner of the complainant's mother.

The complainant's evidence was as follows.  In what must have been 1991, the appellant asked the complainant for a hug when she was alone in the lounge room with him.  She gave him a hug, looked down and saw his penis touching her.  His penis was exposed through the leg of his stubbie shorts and touched her between her belly and her vagina.  She did not know whether or not the penis was erect (count 1).

Some years later when the family moved house in what must have been 1996 or 1997, the complainant was home alone with the appellant.  He took her out of bed and into the lounge room, placed her on the floor and took off her clothes.  He touched her with his hands on her breasts and touched her on the vagina with his hands and his penis.  He tried to put his penis into her but she was pretty sure he did not manage to do so.  He then put his hands on his penis and moved it back and forward until he ejaculated whilst he knelt between her legs (counts 2, 3 and 4).

When the complainant was 10 or 11 and the family had moved again she was once more home alone with the appellant in the day time.  He was drunk.  In the lounge room he removed her clothes, touched her breasts with his hands and her vagina with his hands and his penis and put his fingers inside her vagina, moving them back and forth.  He tried to put his penis into her.  He masturbated until he ejaculated in her vaginal area.  He wiped the ejaculate with a towel (counts 5, 6 and 7).

The complainant also gave general evidence that the appellant had committed similar acts on other occasions throughout her childhood.

Although she had a very close relationship with her mother, she did not tell her about these incidents.  She did not complain to anyone about the appellant's behaviour because she thought it was a secret and she was scared he was going to hit her.

The complainant said that the appellant did not work outside the home and that he lived in the house during most of the period of the relationship between the appellant and her mother.

She did not like the appellant after what he did to her and she agreed that he used to often fight with her mother.

The complainant's mother gave evidence of her de facto relationship with the appellant over 10 years, commencing in late 1990 or 1991, and of the dates in which they lived in various homes.  The relationship with the appellant was interspersed with lengthy separations due to arguments and because of his work with the railways.

The appellant did not give or call evidence.  Mr Byrne, QC, who appears for the appellant today, emphasises the young age of the complainant, the lack of other evidence supporting her claims, that her evidence differed from her mother's in some respects, and was inconsistent with her account to police in some respects and that there was a substantial delay between the commission of the offences, particularly the first of the offences, and the complaint and prosecution.

The learned trial judge, in his summing-up, directed the jury that none of the allegations related to precise dates, that no timely complaint had been made and that the allegations related to events said to have occurred about 10 years earlier. 

His Honour told the jury that these are matters which may have resulted in significant prejudice to the appellant in mounting his defence.  The judge additionally warned the jury that if there had been more detail as to the surrounding circumstances or if there had been less delay it may have been possible for the appellant to have explored the details of the complaint and perhaps find evidence to show that he could not have been where the complainant said he was at that time, and he may have been able to adduce evidence to throw doubt on her story.

His Honour specifically warned the jury that the complainant was only three or four years old in respect of the first of the offences and only 10 or 11 years old in respect of the last of them; that children can and sometimes do lie about such matters and can and sometimes do fantasise about sexual matters; that they may convince themselves of the truth of such things even though they are not in fact true, and that children's memories, as with adult memories, can become corrupted by the passage of time.

The learned judge warned the jury that, because the complainant's evidence was uncorroborated, there was no recent complaint, the lengthy delay and the youthfulness of the complainant, it would be dangerous to convict on her evidence alone unless, after scrutinising the complainant's evidence with great care, considering all of the circumstances relevant to its evaluation and paying heed to the warning, they were satisfied of its truth and accuracy.

No complaint is made as to the careful summing-up.

The inconsistencies relied on by the applicant, if they were inconsistencies, were not, in my view, of much significance.  Although there were weaknesses in the prosecution case which have been highlighted by the appellant, these weaknesses were pointed out to the jury and careful directions were given by the learned trial judge.

The Court must accept that the jury understood and acted on those directions.  Despite those directions, the jury were prepared to accept the evidence of the complainant child beyond reasonable doubt as to the elements of each of the offences.  It was, after all, the only evidence before the jury on these matters as the appellant did not give or call evidence.

It is not necessarily surprising that no complaint was made, taking into account the age of the complainant and the fact that the appellant was then in a de facto relationship with her mother. 

The jury had the advantage of seeing the complainant give evidence (which included her cross-examination as to inconsistencies in her evidence), her lack of timely complaint, and her dislike of the appellant.

The jury were entitled to act on the complainant's evidence and to convict the appellant.

The learned primary judge's careful directions have the result that the matters raised by the appellant, neither individually nor cumulatively, make the jury's verdict unsafe and unsatisfactory.

Finally, the appellant submits that the evidence as to count 1 did not of itself describe conduct which was deliberate or indecent.  Whilst there would be merit in that submission were the complainant's evidence only of one such isolated incident, the complainant's evidence was that this was the first example of the appellant's indecent conduct towards her, which became repetitive and escalated over the next seven years or so. 

The judge gave directions to the jury that it was for them as representatives of the community to determine what amounts to indecent conduct.  In the context of all the evidence, the jury were entitled to conclude that the appellant's conduct which constituted count 1 was both indecent and deliberate.

I would dismiss the appeal.

THOMAS JA:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed.

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