R v The Queen
[1996] QCA 199
•21 June 1996
IN THE COURT OF APPEAL [1996] QCA 199
SUPREME COURT OF QUEENSLAND
C.A. No. 143 of 1996
Brisbane
Before Fitzgerald P.
McPherson J.A.
Pincus J.A.
[R. v. R]
T H E Q U E E N
v.
R
(Appellant)
Fitzgerald P.
McPherson J.A.
Pincus J.A.
Judgment delivered 21/06/1996
Joint judgment of Fitzgerald P. and Pincus J.A; separate concurring reasons for judgment of McPherson J.A.
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED. THE SENTENCE IMPOSED BELOW IS TO BE SET ASIDE AND IN LIEU THEREOF A SENTENCE OF IMPRISONMENT FOR 6 MONTHS CUMULATIVE UPON THE SENTENCES THE APPELLANT IS SERVING IS TO BE SUBSTITUTED.
CATCHWORDS: Conviction - indecent dealing with circumstances of aggravation; complainant under 12 years of age and in accused’s care - accused employed as a taxi driver - complainant an 11 year old male with a limited intellectual disability - whether trial Judge erroneously refused an “application for a mistrial” - whether jury verdict unsafe and unsatisfactory; founded on inconsistencies in the evidence of the complainant and the possibility that evidence had been concocted - accused previously convicted of four offences of a sexual nature - whether a cumulative sentence appropriate.
Counsel: Mr B Farr for the appellant.
Mr D Meredith for the respondent.
Solicitors: Legal Aid Office for the appellant.
Queensland Director of Public Prosecutions for the respondent.
Hearing date: 14 June 1996
JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND PINCUS J.A.
Judgment delivered 21/06/1996
The appellant has appealed against his conviction, on 29 March 1996, of indecent dealing with a child under 12 whilst in his care. He was sentenced to imprisonment for 18 months, cumulative upon a sentence of imprisonment for 8 years which he was then (and still is) serving, and has also applied for leave to appeal against his sentence.
The appellant was employed as a taxi driver and, pursuant to a contract between the company for which he worked and the Department of Education, he transported physically and intellectually handicapped children between their homes and their school. The complainant in this case was an intellectually handicapped 11 year old male, who was described by a psychiatrist called at the trial as falling within the “border line to mildly intellectually handicapped range”. In all, the appellant was charged with seven offences, three of unlawfully and indecently dealing with the complainant, three of carnal knowledge by anal intercourse of the complainant and one of maintaining an unlawful relationship of a sexual nature with the complainant. All offences were alleged to have been committed within the same period, from 1 February 1992 to 30 June 1993. At the end of the prosecution case, a nolle prosequi was entered in relation to two of the charges of indecent dealing and the jury acquitted the appellant of all other charges except that referred to above.
Two grounds were raised by the appellant’s notice of appeal. One was that the trial Judge erroneously refused an “application for a mistrial”. That application followed a statement by a child witness, D, to whom further reference will be made, which was asserted by the appellant’s counsel to be irrelevant, inadmissible and prejudicial to the appellant. Although not formally abandoned, the contention that the trial Judge should have upheld the application to terminate the trial and order a fresh trial was not pressed before this Court. Counsel for the appellant realistically acknowledged that the jury’s acquittal of the appellant on most of the counts made it difficult to argue that the single impermissible statement by Ds had adversely influenced the jury against the appellant.
His other ground of appeal was that the verdict of the jury was unsafe and unsatisfactory; this contention was founded on inconsistencies in the evidence of the complainant and the “high” possibility that evidence had been concocted by the complainant and D, who is physically but not intellectually impaired and was about 10 years of age when the offence of which the appellant was convicted allegedly occurred and 13 when she gave evidence at his trial. Before this Court it was common ground that D's evidence was generally corroborative of the evidence of the complainant in respect of all counts with which the appellant was charged and “potentially directly corroborative” in relation to the offence of which he was convicted.
Shortly stated, on the prosecution case the offence involved the accused parking his taxi, exposing his penis, and requiring or encouraging the complainant to touch it. The complainant said that he did not remember anyone else being in the car which was parked across the road from a cemetery at the time, while D described an incident that occurred when she and the complainant were in the taxi, while it was parked near or in the cemetery, which involved the appellant touching his own penis, getting her to touch his penis, the appellant then touching the complainant’s penis, and then requiring the complainant to touch the appellant’s penis. Even if the complainant and D were not speaking of the same incident, her evidence described her observation of an incident similar to that alleged by the complainant.
The appellant did not submit that there were material inconsistencies in the evidence of D, but specified the following inconsistencies in relation to evidence given by the complainant:
“(a)In evidence the complainant said that the incident occurred in the morning on the way to school, whereas in his statement to police officers he said that it occurred in the afternoon on the way home from school. ...
(b)In evidence-in-chief the complainant said that he didn’t think that any child was in the car at the time. ...
In cross-examination the complainant said that there was only one other child in the car, D. ...
In his statement to police officers the complainant said that there were three (3) other children in the car - D, J and K. ...
(c)In cross-examination the complainant said that on the day of the incident the accused took some photographs of flowers. ...
In his statement to police the complainant said that these events occurred on two (2) different days. ...
(d)In cross-examination the complainant said that D was sitting in the back seat at the time of the offence. ...
D's evidence was that she was sitting in the front seat. ..
(e)In evidence-in-chief the complainant said that he saw ‘white stuff’ on Appellant’s penis at time of the subject incident. ...
However, he had never mentioned such an event previously in relation to this incident although he had in relation to another alleged incident. ...
(f)The complainant’s evidence was that the incident involved a brief touching of the Appellant’s penis by himself and nothing more. He also said that this was the only time that an incident of this nature occurred at that location. ...
...”
D's evidence was:
“... that whilst the Appellant’s taxi was parked near or inside the cemetery, the Appellant touched is own penis after exposing it and then subsequently:
-directed D to touch the complainant’s penis;
-touched the complainant’s penis himself; and
-directed the complainant to touch the Appellant’s penis.”
The allegation of possible concoction turned upon the circumstance that D gave evidence that she and other children were taken by the appellant to the Cleveland Cemetery on occasions and threatened with death by the appellant in the vicinity of a gravestone which, according to the appellant, was the grave of one of his forebears. During the course of police investigations following the complainant’s allegation against the appellant, D and her mother accompanied police to the cemetery and D showed them a gravestone where the threats had allegedly been made. The appellant had denied ever taking the children into the cemetery, and the evidence that D escorted the police to the tombstone accompanied by evidence that she had not previously been to the cemetery was put forward by the prosecution to found an inference that she could only have learned of the gravestone and its location if taken there by the appellant. However, it emerged in the cross-examination of D and her mother that the complainant and D and their mothers had driven to the cemetery a short time before she took the police to the gravestone. D and the complainant’s mother had remained in the car parked in the street while the complainant and D's mother had gone into the cemetery and seen the gravestone, which was pointed out to her by the complainant although he could not read. It also emerged that there had been a conversation about the gravestone later in the car between the two mothers and their children and that the police had not been told of the earlier visit to the cemetery when D led them to the gravestone. According to D, she was short-sighted and did not see from the car where the complainant had taken her mother in the cemetery. The possibility was also suggested to D's mother that she had pushed her daughter’s wheelchair in the direction of the gravestone when they accompanied the police to the cemetery. For the appellant, it was submitted that the failure to notify the police of the earlier visit to the cemetery “is only explicable by way of deliberate concealment”, and that, “because of this high possibility of concoction, the potentially corroborative effect of D's evidence is so seriously flawed that any conviction based upon it would be unsafe.”
Although it is easy to see how the earlier visit to the cemetery by the complainant and his mother and D and her mother might have been relied upon by the appellant before the jury at his trial, for example, to eliminate or reduce the significance of D leading the police to the gravestone and/or discredit her evidence generally, the “concoction” theory is more difficult to pin down. The prosecution case contained no suggestion that the offence of which the appellant was convicted took place in the vicinity of the gravestone and the principal potential significance of D's evidence that the appellant used to take the children to the graveyard to the prosecution case lay in its capacity to explain why the appellant’s conduct had not been complained of earlier; D also gave evidence that the appellant produced a gun while the children were at the cemetery. If her evidence with respect to such matters was fabricated, it does not seem to matter whether or not she and the complainant had “concocted” his allegations against the appellant, and there seems to us no substantial basis for an inference that they had done so. The real difficulty for the prosecution was that if D's evidence was unreliable, for whatever reason, the evidence of the complainant was insufficient to justify the appellant’s conviction; so much was conceded by the prosecutor at the trial in his address to the jury. Talk of “concoction” is something of a distraction; the critical question is whether D's evidence in relation to the visits to the cemetery necessarily raised doubts about the reliability of her evidence, which was otherwise not susceptible to criticism in any material respect.
In our opinion, it cannot be said that a reasonable jury, acting reasonably, could not have been satisfied of the truth of D's evidence. Once that point is reached, the imperfections in the complainant’s evidence, which were as much as might be expected from a boy of his age with limited intellectual disability giving evidence almost three years after the alleged offence, do not cast doubt upon the reliability of the essential elements of his evidence concerning the offence. On the contrary, taken with D's evidence - assuming that the jury accepted it, as it was entitled to do - there was a sound basis for the appellant’s conviction, and his appeal against conviction should be dismissed.
As earlier noted, the appellant also applied for leave to appeal against the sentence of imprisonment imposed upon him. In order to deal with that application, it is necessary to say something of the circumstances in which he had earlier been sentenced to imprisonment for 8 years.
On 11 August 1995, he was convicted in the District Court after a trial of four offences between 1 February 1992 and 11 September 1993. The complainant in respect of those offences was D. Three of the counts related to offences of indecent dealing with circumstances of aggravation that the complainant was under 12 years of age and in his care. The other count concerned maintaining a sexual relationship with a child under the age of 16 years with the same circumstances of aggravation. He was sentenced in the District Court to 10 years’ imprisonment for the offence of maintaining a sexual relationship with a child under the age of 16 years and to imprisonment for 6 years on each of the other offences, the sentences to be served concurrently. His appeal to this Court against his convictions was dismissed on 12 December 1995, but his application for leave to appeal against his sentences was allowed and in lieu he was sentenced to imprisonment for 8 years in respect of the offence of maintaining a sexual relationship with a child under the age of 16 years and 4 years’ imprisonment in respect of each of the other offences, with all sentences again to be served concurrently.
Shortly stated, the indecent dealings involved the appellant touching and rubbing D's breasts, rubbing the inside of her leg and vagina, inserting a finger a short distance into her vagina, and forcing her to touch his penis, causing him to ejaculate in front of her. According to D, he threatened on more than one occasion to kill her if she revealed his conduct.
In dealing with the appellant’s application for leave to appeal against sentence on that occasion, the Court said:
“The applicant’s conduct was abhorrent and had no redeeming features. It involved taking advantage of a handicapped little girl placed in his trust and maintaining his repulsive conduct over a long period. Moreover, ... he has shown no sign of remorse for that conduct.
Unfortunately there is no medical evidence of what, if any, long term effects the applicant’s conduct will have on the complainant. But it is almost inconceivable that it will not have some enduring consequences. It plainly caused her considerable stress at the time.”
However, after consideration of the sentences imposed in a number of other cases, the Court concluded that the sentence imposed in respect of the offence of maintaining a sexual relationship with a child under the age of 16 years was outside the range appropriate for such an offence in the circumstances, as were the sentences imposed for each of the lesser offences. Accordingly, the Court decided that the sentences were manifestly excessive, notwithstanding the seriousness of the offences and the applicant’s total lack of remorse.
In considering the appellant’s present application for leave to appeal against sentence, it is necessary to try to determine what total period of imprisonment is appropriate to the appellant’s total criminality (as presently known), and for that purpose the Court has sought to determine what sentence would have been imposed in respect of the offence against the present complainant if it had been considered at the same time as the offences against D. The appellant’s primary contention that no cumulative period of imprisonment should be imposed must be rejected. Although occurring in the same general period, the present offence affected the life of another child placed in the appellant’s care. On the other hand, the imposition of a sentence of imprisonment for 18 months cumulative upon the sentence for imprisonment for 8 years imposed in respect of the offences against D has resulted in a total period of imprisonment of 9½ years. That exceeds the punishment which his total known criminality merits having regard to the cases discussed on the previous occasion.
If all offences had been considered at the same time, the additional period of imprisonment imposed in respect of the offence against the present complainant to be served cumulatively upon the 8 years’ imprisonment which he is presently serving should have been 6, not 18 months, resulting in a total period of imprisonment of 8½ years.
Accordingly, while his appeal against conviction should be dismissed, the appellant’s application for leave to appeal against sentence should be granted and the appeal allowed. The sentence imposed below should be set aside and in lieu thereof a sentence of imprisonment for 6 months cumulative upon the sentences the appellant is serving should be substituted.
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 21st day of June 1996
I agree that, for the reasons given by the President and Pincus J.A., the appeal against conviction should be dismissed. I also agree that, with respect to sentence, the orders proposed by their Honours should be made for the reasons they have given.
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