R v Tee No. Sccrm-99-120 Judgment No. S352

R V TEE

[1999] SASC 352

Court Of Criminal Appeal: Millhouse, Lander & Duggan JJ

MILLHOUSE J. I suggest for the reasons about to be given by our brother Lander, that the appeal be dismissed.
DUGGAN J. I would dismiss this appeal for the reasons given by Lander J.
LANDER J. The appellant was charged on information with two offences, first that he had unlawful sexual intercourse with DBH, a person of the age of eleven years by performing an act of fellatio upon him and secondly with indecent assault upon the same person.
Both offences were alleged to have been committed between 1 July 1988 and 30 July 1989.
At his trial, in the District Court, a jury convicted him of the first count but acquitted him of the second.
The appellant now appeals against the conviction of unlawful sexual intercourse on two grounds. First that the verdict is unsafe and unsatisfactory and secondly that the verdict on the first count is inconsistent with the verdict on the second count and cannot stand.
The trial was a very short one. The evidence occupied less than one day and counsel addressed the jury on the next day and the Judge summed up on that second day.
In his summing up the Judge remarked upon the professional and competent manner in which counsel for the appellant and respondent had conducted themselves in the trial.
The jury not only had the advantage of competent counsel in this case they also had the further advantage of a very helpful summing up by the learned Trial Judge.
The complainant was born on 3 June 1977. He turned twelve on 3 June 1989. That date is, of course, relevant because the charge upon which the appellant was convicted was that he had had unlawful sexual intercourse with a person under the age of twelve.
As I have already remarked it was alleged in the information that the act of unlawful sexual intercourse took place between 1 July 1988 and 30 April 1989.
In 1988 the complainant was in Grade 5 at primary school in Port Pirie. The complainant was in the under 11s cricket team.
The complainant said the appellant asked him to play cricket for the team he coached. The appellant used to take him to and from cricket matches.
The first occasion that the complainant went to the appellant’s house was for the purpose of doing some weeding to earn money to spend at the smelters picnic.
He said that he met the appellant’s wife and was then provided by the appellant with tools for weeding and he carried out that operation for about an hour or an hour and a half.
After he completed the weeding he went to the shed which was at the back of the appellant’s house and knocked on the door and spoke to the appellant.
The appellant asked him to come into the shed and asked the complainant to sit on his lap. He said that whilst he was sitting on the appellant’s lap the appellant kissed him on the lips. He said he kissed him for about five or ten seconds. The appellant gave the complainant fifteen dollars. The appellant was not charged in relation to this incident.
The complainant said that the appellant then took him to a workshop and showed him a cricket bat and said that if he liked to return he could help the appellant do it up.
The following weekend the complainant returned to the appellant’s house. He said that he did not see the appellant’s wife on this occasion. No-one answered the door of the house so he went to the workshop at the rear of the appellant’s house. He said that he met the appellant and they sanded down the cricket bat and oiled it. Whilst they were waiting for the oil to dry the appellant took the complainant into a pool room which was contained within the shed. There was a pool table in the middle of the room and the complainant said that the appellant sat the complainant on the pool table with his legs facing the appellant.
The complainant said the appellant started kissing him again. The appellant described the incident in the following terms:
“Barry Tee sat me up on the pool table, with my legs facing him. He started kissing me again. I didn’t know what to do. I guess I kissed him back. While this was happening, he was playing with my leg, like, rubbing it, up and down. He stopped kissing me for a bit and laid me down on the pool table and he undid my pants and started playing with my penis in an up and down motion. He started kissing me around the penis and on the top of my penis. He was, like, going down on my penis and I knew this, because he tickled and I could feel his moustache around the base. He then turned me round on the table, so I was facing longways and he got on the table himself. I didn’t know what was going on. It was like he rolled me on to his stomach and proceeded to - still kissing my penis. I don’t know how it happened, I am not sure where, but his pants were down, at that time, when I was rolled on his stomach. I didn’t know what to do. I started kissing him on the penis as well. That’s about it.”
The complainant said that he told the appellant he needed to go to the toilet and they both got off the pool table and got dressed. The complainant said that the appellant told him to go to the back of the house and knock on the back door, which he did, and the appellant’s wife directed him to the toilet. He then went home.
It was that conduct which comprised the count upon which the appellant was convicted.
He did not tell his parents or anyone else about either of these incidents. He could not say why he had not.
His next contact with the appellant was when the appellant came to his house midweek and asked him whether he wanted to help the appellant build a pergola on a third party’s premises at Napperby over the weekend. The complainant said that he needed the money so he agreed to help.
The complainant’s evidence was that this occurred on the weekend following the incident on the pool table.
On that next Saturday he and the appellant drove to Napperby in the appellant’s car. He assisted the appellant to build the pergola and they worked until 8 o’clock. He said that at that time daylight saving was in place.
He said that they had planned to camp on the premises and they erected a tent. He said that it was a two man tent. The complainant said he changed into his pyjamas and got into his sleeping bag.
He said the appellant began kissing him again on the lips and the appellant put his tongue in his mouth. The appellant, he said, then started playing with his penis and he did so by putting his hand inside the complainant’s sleeping bag and inside his pyjamas. He said that the appellant rubbed his penis.
He could not remember whether the appellant said anything to him or for how long the behaviour continued. He could not remember whether he touched the appellant’s penis.
He was sure that he woke up in his sleeping bag the next day. He said they worked the next day on the pergola until about lunchtime when the appellant drove him back home.
Again he did not tell his parents of this incident. The complainant said that he did not complain of these incidents until June 1997 when he went to the police. When he first went to the police he only complained of the first two incidents and did not mention the incident in the sleeping bag.
The complainant was shown a cricket trophy awarded for the 1988/89 season. He said that was the only season he played cricket for the club which the appellant coached. He said that these incidents occurred during the time that he was playing cricket.
If that was so it might be inferred that these episodes occurred in the cricket season 1989/90 or at the very earliest immediately prior to the cricket season in September 1989.
However, there was other evidence which indicated that this pergola was erected in September 1988 and that the appellant had been paid, in relation to the pergola, on 12 September 1988.
The inference from that piece of evidence was that these incidents, if they followed week by week all occurred prior to 12 September 1988.
There is no doubt that the appellant’s evidence in relation to exactly when these episodes occurred is suspect and could be described as unreliable.
The evidence indicated, in my opinion, that contrary to the complainant’s evidence these incidents occurred in 1988.
The complainant’s evidence was that he had nothing further to do with the appellant after the pergola incident. If in fact he received a trophy for the year cricket season 1989/90 then, of course, that evidence could not be correct if as well these incidents occurred in 1988 as the evidence indicated they did.
It is right therefore, as Mr Boylan who appeared for the appellant said, that the complainant’s evidence in relation to the timing of these incidents was unreliable.
Mr Boylan also pointed to another aspect of the complainant’s evidence which he said indicated unreliability. As I have already said the complainant did not complain about the third incident when he went to the police in June 1997. It was not until February 1999 that the prosecution produced a statement from the complainant in which, for the first time, he mentioned the tent incident.
The appellant gave evidence and denied that he had ever kissed the complainant or that either of the incidents on the pool table or when the pergola was constructed occurred. He was able, however, to recall that the complainant had visited him at his house. He remembered an occasion in 1988 when the complainant went to his house and did some weeding for which he paid him. He said that the complainant was looking for money to spend at the smelters picnic which was to take place in either September or October of that year.
He was also able to remember that he built a pergola in September 1988 and was paid for it on 12 September 1988.
He said that the complainant assisted him to build that pergola. They worked on the pergola on one weekend on both a Saturday and a Sunday. He said, however, they did not camp out on the Saturday night but travelled to and from the property where the pergola was being erected on both the Saturday and the Sunday.
The appellant’s evidence was that the complainant did play cricket in 1988. He said the complainant stopped playing cricket in December 1988.
That in fact was, in a sense, consistent with the complainant’s evidence. He said he only played for one season. It was at a time when he was being taught by Mrs Edge. He was taught by Mrs Edge in 1988 and 1990. He also said that he did not continue with his cricket after these episodes.
The other matter consistent with this matter happening in 1988 is that the complainant said that this happened when he was playing for the under 11’s. He could not have played for the under 11’s after 1988.
If, however, both the complainant and the appellant were right that the appellant did not play cricket in 1989/90 then it is hard to understand how it was that he received the trophy which was tendered in the trial.
In any event the appellant simply denied that these incidents had ever occurred.
The appellant was interviewed by the police and the interview was recorded on video and the video recording of the interview was tendered.
He was asked the following questions and gave the following answers.
“Q     Do you remember kissing this lad at all?
A      I can’t remember kissing him.
Q      Did, at any time, you suck the boy’s penis.
A      No, I deny I ever sucked his penis, I never sucked anyone’s penis.
Q      Did the child ever suck your penis.
A      No.
Q      Did you ever touch the child’s penis with your hand.
A      I don’t know.
Q...... On the pool table, could there have been a time when you masturbated him.
AGee, I don’t know. I wouldn’t have thought so. I don’t think that, we never, or anything like that.”
He was later asked about the pool table incident and he said:
“I know, I know, that’s possible, I am not sure about the kissing part, whether that could have been possible. I mean, that was a few years back. That sort of thing, you probably want to forget that this happened anyway.”
The appellant was cross examined about that part of the interview to which I have earlier referred and his explanation for his answers included a denial that he ever masturbated the complainant and a claim that he was confused during that interview.
The appellant submitted that the verdict is unsafe and unsatisfactory, and in particular, in two ways. First, it was said that it was not open to the jury to be satisfied beyond reasonable doubt that any sexual incident at all had occurred between the appellant and the complainant. Secondly it was not open to the jury to be satisfied beyond reasonable doubt that the offence of unlawful sexual intercourse, if it took place, took place before the complainant had turned twelve.
Dealing with the second point first, in my opinion, it was open to the jury to conclude that the act of unlawful sexual intercourse took place in September 1988 which would have been well before the complainant had turned twelve.
The jury was entitled to conclude that these episodes took place over a short period of time and that the pool incident took place prior to the pergola incident which itself took place in September 1988.
They were also entitled to rely upon the fact that the complainant said that these incidents occurred when he was playing in the under 11s and during the year in which he was being taught by Mrs Edge. It is true that Mrs Edge taught him in both grade 5 and grade 7 but the jury were entitled to conclude, in my opinion, that this happened when the appellant was eleven and in Mrs Edge’s class in grade 5.
As to the first matter it is true, as I have already mentioned, that the appellant’s evidence in relation to dates and times was confused and on some of those aspects, I think, unreliable.
It is also true that the complainant admitted that he had difficulties with his memory and had conceded that those difficulties had been exacerbated by smoking marijuana. He agreed that he could not remember little things.
In my opinion, whilst there might have been some evidence that his memory of events eleven or so years ago was unreliable as to detail there was no evidence to suggest that his memory had been so affected so as to create false memories.
In my opinion, on the evidence before the jury, the jury could well have concluded that the accused was guilty beyond reasonable doubt.
The jury had an advantage, which this Court does not enjoy, in seeing and hearing both the complainant and the appellant. They had the advantage of seeing the complainant and were therefore in a position to allow for those aspects of his evidence which were unreliable.
The jury has concluded and I think it was open to conclude that notwithstanding the unreliability of his evidence in respect of some matters the complainant’s evidence in relation to the essential elements of the offence of unlawful sexual intercourse were made out.
In my opinion, this was, as the Director of Public Prosecutions said in his address, a true jury question. I have read the evidence as I am obliged to do. I am not satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: Jones v The Queen (1997) 191 CLR 439 at 450/452.
In my opinion the appellant’s claim that this verdict is unsafe and unsatisfactory should be rejected.
Next the appellant claimed that the jury’s verdict in relation to the second count was inconsistent with being satisfied beyond reasonable doubt of the appellant’s guilt of the offence of unlawful sexual intercourse.
It was necessary if the jury were to convict the appellant that the jury had to be satisfied beyond reasonable doubt that the appellant was being truthful in his account of the events. Because the jury acquitted the appellant in relation to the second count it does not follow, in my opinion, that the jury must have believed that the complainant was untruthful in relation to that count.
The jury had been reminded by the learned Trial Judge that they had to consider each matter separately. The learned Trial Judge said to the jury in his charge:
“Ladies and gentlemen, there is one other matter of law about which I wish to direct you. We have here two separate offences on two separate occasions, although, on the Crown allegations, they are about a week apart. You must treat each offence separately. You must not reason that, because he is guilty of, for instance the first count, if you find him guilty of the first count, it would not necessarily mean that he is guilty of the second. You must go through the process of asking whether each element of each charge has been proved beyond reasonable doubt as a separate exercise and not just lump the two in together.”
It seems to me that it is clear enough that the jury accepted that direction from the Trial Judge and considered each of the charges separately. In doing so they were entitled to conclude that in respect of the second charge it had not been made out beyond reasonable doubt.
The complainant’s evidence in relation to the first count was more detailed than his evidence in relation to the second count. He said that his memory of the second count was not good.
In cross examination the following questions were asked and answers given:
“Q.... You have always said that the memory of the tent incident, your memory of that incident, isn’t too good is it?
AYes.
Q...... Because you were drifting in and out of sleep.
APretty much.
Q...... Your memory of that night is poor?
AOnly because I choose it to be.
Q...... You choose it to be poor?
A Yes, I’ve blocked out a lot of this.”
The complainant’s own admission of his poor memory is enough to explain why the jury might have acquitted the appellant in respect of the second count. The jury, on that evidence alone, may not have been satisfied, beyond reasonable doubt, that the appellant had committed the second count as charged but still be quite satisfied of the truthfulness of the complainant.
In those circumstances it cannot be said that the two verdicts are an affront to logic and common sense but the verdicts indicate, in my opinion, that the jury accepted the direction given by the learned Trial Judge and reasoned appropriately.
In my opinion the second ground of appeal is also not made out.
I would dismiss the appeal.

[1999] SASC 352

21 September 1999