R v T

[1994] QCA 293

IN THE COURT OF APPEAL	[1994] QCA 293
SUPREME COURT OF QUEENSLAND

C.A. No. 133 of 1994

[R. v. T]

THE QUEEN

v.

T

(Appellant)

The President
Mr Justice Davies

Justice Demack

Judgment delivered 05/08/1994

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED.

imprisonment is imposed.

CATCHWORDS:  CRIMINAL LAW - SENTENCE - eight year old female indecently dealt with by a thirty-one year old male - sentence imposed of 18 months imprisonment manifestly excessive imposed.

UNSAFE OR UNSATISFACTORY VERDICT - were inconsistencies in complainant's evidence satisfactorily explained - appellant convicted on uncorroborated testimony.

Counsel:	T Martin for the appellant
P Rutledge for the respondent
Solicitors:	Legal Aid Office for the appellant
Director of Prosecutions for the respondent
Hearing date:	24 June 1994

JUDGMENT OF THE COURT

Judgment delivered 05/08/1994

The appellant was convicted of unlawfully and indecently dealing with L., a child under the under of 16 years, who, at the time, was under the age of 12 years. He was sentenced to eighteen months imprisonment with a recommendation that he be considered eligible for parole after serving four months. He was sentenced on 15 March 1994. He has appealed against his conviction and seeks leave to appeal against sentence.

The first ground of the appeal against conviction was that the verdict of the jury was unreasonable or, alternatively, cannot be supported having regard to the evidence and was, in all the circumstances, unsafe and unsatisfactory. The second ground of appeal was that the learned Trial Judge failed properly and adequately to direct the jury in respect of the danger in convicting the appellant on the uncorroborated evidence of the complainant.

Verdict Unsafe and Unsatisfactory

The complainant, L., was born on 5 July 1983. She was interviewed by a police officer, and that interview was video-recorded on 24 October 1992. The committal proceedings took place on 7 June 1993 and the trial on 14 March 1994. There are two bases upon which the argument, that the verdict is unsafe and unsatisfactory, was advanced. First, it was asserted that there were serious inconsistencies between her evidence in the video-recording, her evidence was uncorroborated was emphasised under this ground of appeal, as well as under the ground about the directions given to the jury in respect of corroboration.

The video-recorded interview began with general questioning and proceeded to a

question whether anyone had ever hurt her to which she responded, "Uncle". She was asked:-
"And what's Uncle T done to hurt you? ... He got my hand and put his-my hand on his

dick."

L. said this had happened once. The appellant was wearing shorts and jocks. L. said he put her hand inside his clothing. She was sleeping on a bed in the appellant's bedroom before the incident occurred.

L.'s evidence in chief at the trial was that the appellant got his hand, putted the elastic of his shorts and jocks out, and stuck her hand in, touching his penis.

It is apparent from these two accounts that they are essentially the same, although there is detail in the evidence at trial which was not present in the interview. This is not surprising in itself. The criticisms made do not so much concern the complaint of touching, as the surrounding evidence.

First, it is asserted there is inconsistency in respect of the evidence about whether the touching caused pain. In the interview, the police officer introduced the word "hurt". At committal, L. was asked, "How did he hurt you?" and then, "When he did that did you feel any pain?" To the latter question she answered, "Yes". When asked at trial, "Did you feel any pain or anything like that?" she answered, "No". While it can be asserted that there is an inconsistency here it is, in part, made explicable by the form in which the questions were asked. Also, although L. said, at committal, that the appellant "gently picked up my hand" when he placed it on his penis, she said in evidence in chief at the trial that she could not pull her hand away because "he held my hand too tight." In other words there were two parts to the incident, the placing of her hand on his penis, and the restraint of her hand when she tried to move it. Without very precise questioning it cannot be said that there is necessarily an inconsistency, as the holding of her hand "too tight" may have hurt her, whereas placing her hand on his penis may have caused no pain.

There are then four points where there are inconsistencies, whether L. was lying on top of the bed or under the sheets, whether she had been asleep before the incident began, whether the appellant lay on the bed on her right side or her left side and whether the appellant placed her right hand or her left hand on his penis.

These matters are ones involving significant detail in the complaint's account of the incident. Her age and the time intervals between the incident, the video-recorded interview, the committal proceedings and the trial make it very likely that inconsistencies will occur. To some extent, it will depend how vividly the details of the incident and of the following events were impressed on her mind.

A further significant matter concerned the evidence about when the offence was committed. In the interview in 1992 she said it happened the previous year and at trial she said it happened in 1992. In each case, she associated the time with the year in which Mrs Brown was her school teacher. Again it is not surprising that there is a lack of consistency about dates because of the time intervals involved, but there is a consistency about Mrs Brown being her teacher at the time.

The matters which are said to destroy L.'s credit are, first, the fact that in evidence in chief at the trial she gestured an estimate of the length of the appellant's penis at the time of the alleged touching, whereas in cross-examination she agreed she did not see the appellant's penis. Of course, it is possible for her to give an estimate of size from what she felt as well as from what she saw.

Secondly, she said she had not felt a penis before but it felt the same as when she touched her leg. This does not, in itself, destroy the credit of a 10 year old witness, giving evidence of events that happened when she was about 8 years old.

While this review of the evidence has been briefly stated, it has involved an examination of the relevant evidence. There was no corroborative evidence. The case rested on the complainant's account. To some extent her appearance, both in giving evidence and in the video recorded interview, is significant, but when the evidence is looked at in its entirety there is a consistency in the account of that part of the incident which is likely to make a significant impression of a young girl's mind.

The appellant is the brother of L's mother. L. said the incident occurred when she was "sleeping over" at her uncle's house. His wife, N, was out. She remained on the bed until Auntie N came home. She said nothing of the incident for a long time. There is nothing in these circumstances to raise a suspicion of fabrication. They simply indicate a natural reluctance to speak about an unpleasant experience.

No basis was suggested to explain any fabrication. The complainant was put to the proof of allegation, and she gave accounts, on three widely separated occasions, which are consistent in their essence and which have inconsistencies in relevant detail. It was open to a reasonable jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Corroboration

The learned Trial Judge warned the jury "that when the allegation of misconduct is not supported by some other independent evidence then it can be dangerous to act only on that evidence to find a person guilty." He discussed the matter in some detail and said: (p. 45)

"There is other evidence before you which tends to confirm some of the components or details of her account, but it is not independent evidence supporting the central allegation which she makes."

It was argued that this was a confusing direction. While the sentence is awkwardly expressed, it clearly says there is no corroborative evidence, so that the danger involved in acting only on L.'s evidence exists. So His Honour continued:-

"You must look at her evidence, consider the way she gave it; consider the content of it; how she gave it. Keep in mind the various submissions made to you by both Counsel."

The trial occupied one day, and the longest portion of the day was that taken up with the playing of the video recording and the giving of evidence by L.. The jury was told it was dangerous to convict on her evidence alone, but then given a clear direction to consider that evidence with care.

There was no misdirection about corroboration.

Further the absence of corroborative evidence does not add any additional weight to the submission that the verdict was unsafe and unsatisfactory. That ground has been discussed and rejected.

The appeal against conviction is dismissed.

Application for leave to appeal against sentence

The applicant is a married man with one child. He is aged 33 years.

The complainant was aged about 8 years at the time. There was one incident in which he placed her hand inside his shorts and underpants and on his penis. The incident lasted possibly 3 seconds. The incident occurred when the child was supposed to be sleeping in the applicant's bed. There was a clear betrayal of trust.

The Court was referred to a list of cases where men, in positions of trust, indecently dealt with young girls. The gravity of these offences varied considerably and that is reflected in the sentences imposed.

There are three decisions of this court which involve comparable incidents, I.R. Cliff (C.A. 24/94), B.A. McCormack (C.A. 161/93) and B.H. Read (C.A. 178/93). Each involved once incident of touching of the complainant in the genital region. The longest sentence imposed by this Court was in Cliff. Cliff, aged 31 years, had been drinking with the complainant, aged 14 years. The incident involved them both being naked in bed. He touched her breasts and the outside of her vagina. His sentence of 3 years was reduced to 6 months, and that sentence was suspended forthwith.

The other two appeals involved a touching on the vagina outside of the girl's clothing.

In the light of these appeals, the sentence is manifestly excessive. Leave to appeal is granted. The sentence of eighteen months imprisonment is set aside and in lieu a sentence of six months imprisonment is imposed.