R v T

[1996] QCA 45

[1996] QCA 45

COURT OF APPEAL

MACROSSAN CJ
FITZGERALD P
DAVIES JA

CA No 433 of 1995

THE QUEEN

v

T  Appellant/Applicant

BRISBANE

DATE 8/02/96

JUDGMENT

THE CHIEF JUSTICE:  The appellant was convicted on four counts of indecently dealing with his niece who was in his care at the time.  In the circumstances of two of the counts there was the further aspect that the child was under the age of 12 years.  There is an appeal against conviction upon various grounds which I can turn to in a moment.

It is helpful first to set out the circumstances of the offences and describe the way the trial proceeded.  The only witness for the Crown was the complainant herself.  She was born on 25 July 1980.  The offences in question occurred in a period commencing in September 1991 and extending through to, it would seem, about July 1992.

In respect of the first count the complainant's evidence was that she had been taken to a swimming pool at Wynnum by the appellant and it would appear to be a public swimming pool.  Her version was that he would not let her swim but he would hold her up against a wall or in a corner and in that situation touched her on the chest and on the vagina.

In respect of the second count the complainant's version was that she was in Toowoomba for a cousin's birthday party, having travelled up there with her parents and sisters.  However she stayed overnight in a motel room with the appellant, her uncle.  She said she slept in a double bed with the appellant and she said that on this occasion the appellant rubbed her chest and her vagina and also rubbed his groin against her side.

Counts 3 and 4 were concerned with events that occurred at Bribie Island when the complainant and the appellant went to do some painting and drawing together.  They went up on a Friday and returned home on Sunday.  While there they stayed in a motel room which contained a double bed and a single bed.  The complainant said that they both slept in the double bed and that on the Saturday night when they were there she said the appellant touched her on the chest and vagina and also on this occasion he put his fingers in her vagina and he made her touch his penis as well as rubbing himself against her.

Amongst the evidence in the trial it appeared that the appellant took photographs of her while at Bribie Island wearing clothing that he had purchased for her.  The photographs tendered showed the complainant wearing a bathing suit at Wynnum also and showed her again on another occasion wearing a white bikini which the appellant had given her.

The appellant gave evidence and he denied the complainant's allegations.  He agreed that he had taken the complainant swimming.  His explanation of the circumstances included his claim that he had had a back operation which seems to have been so and he said with his bad back he could not have done what was alleged against him;  that is, in respect of holding the complainant in the corner of the swimming pool.

He agreed about the overnight stay in Toowoomba to which I have referred.  He said that he had asked the motel staff to supply a suitable cot in the motel room because his niece would be staying with him and he said that was done.  He denied, once again, the allegations made by the complainant in respect of that occasion.  He agreed that a trip to Bribie Island had taken place.  He said the circumstances were that he had planned a weekend away with his wife and the complainant wanted to go with them but then the wife withdrew from the planned trip so that he went with the complainant alone, she wanting to go.

He explained his taking photographs of her on the basis that he had previously completed a portfolio of young women aspiring to be models and that his photographing of his niece was consistent with that project.  He said that at Bribie Island he slept in a single bed and the complainant slept in the double bed.  Although the complainant was the only witness for the Crown, the appellant did call other witnesses.  There was an orthopaedic surgeon who confirmed that a back operation had been performed upon the appellant.  The lessee of the Manly Swimming Pool gave evidence describing the dimensions and characteristics of the pool.

The undoubted fact is that there was a close association between the appellant and the complainant.  The point at issue at the trial was whether that association had involved an improper sexual element.  The jury's verdict indicates they were satisfied that it did and they reached this conclusion having the benefit of seeing and hearing the two principal protagonists.

The grounds of appeal are ones which I shall now mention in turn. The first is that the trial Judge was in error in excluding a clinical psychologist called Dr Hazel from the Court when the complainant gave evidence. The trial Judge made an exclusion order, having in mind the provisions of section 5 of the Criminal Law Sexual Offences Act 1978 in which he did not make any exception in the case of Dr Hazel to permit him to stay in the Court room while the child gave evidence. He ordered rather that Dr Hazel be excluded.

He did this after the nature of the evidence which could be expected from Dr Hazel was outlined to him.  It appeared that it was not proposed that Dr Hazel would give evidence directly concerning the complainant, that is, as an individual, but that it was proposed he give evidence of a general kind concerning the characteristics of children and the testimony that could be expected from them.

The Judge considered that there was no reason in these circumstances to make an exception and allow Dr Hazel to be present and he excluded him therefore while the complainant gave evidence.  He made clear in ordering that exclusion that he was not intending in any way to indicate at that point that Dr Hazel would not be permitted to give evidence in the case on the general aspects which had been outlined to him.  However, in the events that happened Dr Hazel was not called by the defence and it sufficiently appears that the defence advisers accepted at that time that Dr Hazel could not help the defence case with testimony.  That was the judgment they made.  So far as the exclusion order is concerned there is no reason to conclude that the matter was not within the Judge's discretion or that the exercise of his discretion was improper.

The second ground was that there was a miscarriage of justice because a will made by the appellant was accidentally included within certain documents which had been placed before the jury and the jury discovered it in the course of their deliberations.  It is not possible to conclude that this would result in a miscarriage of justice.  There was no doubt that in the circumstances of this case as between the appellant, an uncle and his niece, there was a substantial association and there was nothing necessarily improper in that.  The question that the jury were concerned with was whether it contained an improper element.  The discovery of the will disposing of certain property in favour of the niece would not have prejudiced the jury's consideration of the issue in my opinion.

The next ground of appeal is that a miscarriage of justice occurred because the legal representatives of the accused failed to follow his instructions to call witnesses who were then available to give evidence.  The appellant has now produced and the Court has had the advantage of surveying them, a number of statements from witnesses who could give certain evidence and would have been available, it is contended, to give that evidence at the trial.

The point is that the witnesses deal with matters of a circumstantial kind and speak of things very much at the periphery.  A large amount of the testimony to which the appellant refers under this heading consists of statements of matters which might be thought to go to show dissension within the family circle and antagonistic feelings entertained towards the appellant within the family circle, even perhaps it might be said going so far as advancing a conspiracy theory designed to exact revenge.

The suggestion is that from this evidence an implication could be drawn that the complainant was party to some elaborate plan to seek revenge against the appellant due to the antagonism within the family circle.

The difficulty really is that, as I have said, these matters are very much at the margins of what was under consideration in the trial even if it is accepted as the appellant contends that he had firmly pressed his legal advisers to call these witnesses whose statements have now been seen by the Court.  It is true also that his legal advisers refused as a matter within their judgment to call those witnesses.

It would not be possible to reach a conclusion that there was an error of judgment on the part of the legal advisers which would entitle the appellant now to complain about the decision that they made.  It is clear enough that the legal advisers in making a decision not to call these witnesses said to be available would be making a tactical decision and it is one which is easy to understand.

Looking at this material it does not convey any impression that the evidence from these witnesses should be judged as helpful to the appellant in terms of the point which he hoped would be made before the jury namely his innocence of the particular matters charged.  It is not possible, in my opinion, to come to a conclusion that even if the legal advisers should be regarded as having made a decision quite contrary to that which the appellant was arguing for at the time, the appellant has lost a chance of acquittal due to the absence of that testimony and it is not possible to conclude therefore that a miscarriage of justice has resulted.

The admissibility of the testimony, in any event, would have been at least doubtful.  In my opinion the testimony could not have been successfully argued as admissible and as I understood the argument for the appellant before us, although the ground was persisted in, it was not strongly contended that this testimony would have been admissible if tendered below.

The general grounds are then included within the particulars specified in the grounds of appeal.  It was said that conviction was unsupported and against the weight of the evidence.  It is impossible to sustain this because the complainant gave elaborate evidence which the jury found convincing and which, when looked at, they were fully entitled to find persuasive.

It is said that the conviction was unsafe and unsatisfactory.  This Court has taken into account everything said by counsel for the appellant before it and nothing further emerges which can provide a basis for that contention.  It is said that the Judge failed to direct the jury adequately in respect of a number of matters.  Grounds are broadly set out there.

There is a reference to the elements of the offence, corroboration and aspects of it, onus and standard of proof and proper approach to be taken by the jury.  These points remain as part of the appeal presented to us but counsel was unable to point to any aspect within the summing-up to sustain these objections which are made.

In my opinion it is not possible to come to any conclusion other than that the grounds of appeal are not made out and I would dismiss the appeal.  There is an application for leave to appeal against the sentence of 15 months imposed upon the applicant in respect of the various counts of indecent dealing.  This is the sentence which emerges from the orders which the sentencing Judge has made and this Court must then consider the term of imprisonment for 15 months.

The applicant was a 48 year old and he had no prior criminal history.  The girl herself was of the ages 11 and 12 at the time of the commission of the various offences which extended over a period of about a year.

The Court has recently in the case of R v Pham CA No 435 of 1995 in a judgment delivered on the 6th day of this month dealt with another case of indecent dealing of a girl under the age of 12 where a sentencing Judge in the District Court imposed a sentence of two years.

The circumstances there can be compared in a general way with the present but it was not a case where there was a long continuing course of offending and it was a case where the applicant was a younger man.  He was aged 24 only when he committed the offence.  He too had no prior criminal history.

The Court of Appeal there after considering the attitude of the Court to sexual offenders where young children were involved dealt with the matter by reducing the term of two years which had been imposed to one year only.  It cannot be said, when the circumstances are compared, that the sentence here of 15 months is out of line with the result ordered by the Court of Appeal in the case of Pham.

The particular submission was made to us that the sentence which was imposed by the sentencing Judge in the present case should have included an order that it be suspended after part of it had been served.  Such an approach would, no doubt, have been open to the sentencing Judge but this is Court is entitled to interfere only if in its judgment the sentence actually imposed is manifestly excessive.

I could not so conclude.  In fact the argument for the applicant before us was that the sentence imposed was within the applicable range for offences of this kind particularly where this is an absence of remorse as is the case here.

The sentence imposed was actually at the lower end of the range of 15 months to 18 months which was contended for by the applicant's counsel on sentence.

In all the circumstances it does not appear to me that there is justification for this Court to interfere and I would refuse the application.

THE PRESIDENT:  I agree.

DAVIES JA:  I agree.

THE CHIEF JUSTICE:  The orders will then be as I have indicated.