R v Thompson

[1995] QCA 505

IN THE COURT OF APPEAL	[1995] QCA 505
SUPREME COURT OF QUEENSLAND

C.A. No. 253 of 1995

Brisbane

[R. v. Thompson]

THE QUEEN

v.

KENNETH BARRY THOMPSON

Appellant

Fitzgerald P.
Davies J.A.

Moynihan J.

Judgment delivered 17/11/1995
Judgment of the Court

THE APPEAL AGAINST CONVICTION IN RELATION TO COUNTS ONE, TWO AND FOUR IS DISMISSED. THE APPEAL IN RELATION TO THE THIRD COUNT IS ALLOWED AND A VERDICT OF ACQUITTAL IS TO BE ENTERED IN RESPECT OF IT.

CATCHWORDS:	CRIMINAL LAW - INDECENT ASSAULT; whether verdicts unsafe and unsatisfactory; whether complainant's evidence rendered unreliable due to inaccuracies in evidence; whether duplicity in one of the counts.
S. v. R. (1989) 168 C.L.R. 266.
Counsel:	Mr. P. Godsall for the appellant Mr. B. G. Campbell for the respondent
Solicitors:	Butler McDermott & Egan for the appellant

Crown Solicitor for the respondent

Hearing Date:	15 August 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 17th day of November 1995

The appellant was convicted in the District Court on 1 June 1995 of four counts of indecent assault. The third and fourth counts contained a circumstance of aggravation involving penetration of the vagina by a finger. At the time of the alleged offences, the complainant was 16 years old. This is an appeal against those convictions.

There are two grounds of appeal. The first is that the verdicts of the jury were unsafe and unsatisfactory. There are two bases to this ground. The submission in relation to the first basis was essentially that the complainant’s evidence was unreliable. In relation to the second basis, the submission was that there was a lack of particularity in the complainant’s evidence in relation to count four, thereby infringing the principle stated in S. v. R. (1989) 168 C.L.R. 266. The second ground of appeal is that there was a miscarriage of justice in that fresh evidence establishes beyond doubt that the offences could not have occurred on the dates on which the complainant alleged.

In making his submission in relation to the first basis of the first ground, counsel contended that the offences could not have occurred on the occasions that the complainant said they did, thereby rendering her evidence inherently unreliable. The facts giving rise to the alleged offences are relevant to this submission and therefore it will be necessary to give a summary of them.

The appellant, his wife and the complainant had travelled by car to Innisfail to attend the appellant’s niece’s wedding which was on 22 June 1991. There they met up with the appellant’s and his wife’s daughter who was a friend of the complainant.

The complainant told the Court that the appellant interfered with her in her bed in the morning on four specific occasions whilst they were in Innisfail. She gave evidence of a pattern of conduct by the appellant whereby, on each of the first three occasions, all of which were before the wedding, he would wait until his daughter, who shared a bed with the complainant, had gone for her shower, and then get into the bed and interfere with the complainant. She said that the first occasion took place on the morning after their arrival in Innisfail and that the second occurred on the following morning. She gave evidence that on the third morning, she avoided this occurring by getting up early. She said that the next morning, being the fourth morning, he interfered with her again. Her evidence was that the “next day was the wedding”, and that nothing happened on the morning of the wedding.

The complainant said that the final interference which she could recall with any specificity occurred on the morning after the wedding. She was then no longer sharing a bed with the appellant’s daughter but was in a bedroom on her own.

The appellant gave evidence. He admitted that he got into bed with the complainant “it might have been four it might have been six times” prior to the wedding to give the complainant “a cuddle”, but denied that there was any impropriety. He said that on the mornings before the wedding, his daughter was in the bed with the complainant, though asleep, and that he got in between the two of them. This is in contrast to the complainant’s evidence that the appellant got into bed with her alone. The appellant’s daughter was not called as a witness.

The appellant also admitted that he got into bed with the complainant the day after the wedding when the complainant no longer shared her bed with the appellant’s daughter. Thus, the complainant and the appellant agreed that, on numerous occasions before, and once after the wedding, they were in bed together. The only differences between their evidence was as to what actually occurred on each occasion and, as to the occasions before the wedding, whether the appellant’s daughter was also in the bed.

The complainant said that they had arrived in Innisfail around 17 June, though she said that she was not sure of the exact date. Her examiner and cross-examiner used 17 June as the reference point for their questions. And though the complainant did not nominate the actual dates on which the events occurred, but rather agreed with her examiner and cross-examiner as to the dates of the occurrences when they put them to her, the result is that, on the complainant’s evidence, the offences occurred on 18, 19, 21 and 23 June.

However, it was established at trial by reliable evidence that the appellant, his wife and the complainant in fact arrived in Innisfail on the afternoon of 19 June. It followed, it was submitted, that as the arrival date was in fact the afternoon of 19 June and as the complainant said that there was no incident on one morning prior to the wedding day and none on the morning of the wedding, there could not have been three incidents prior to the wedding; and that this rendered the complainant’s evidence so unreliable that it ought to have been rejected by the jury.

In our opinion the facts that the complainant was mistaken as to the dates on which the offences occurred and, possibly, as to whether two or three such offences occurred before the wedding are not sufficient to render her evidence unreliable; the offences were committed some four years before the trial and it could not be expected that the complainant would recall such matters of specificity. Important features of her evidence, namely the description of the occasions on which offences occurred, that one was on the day after arrival, one the next day and one the day after the wedding when she was no longer sharing a bed, were credible. The jury would also have been entitled to take into account the evidence of the complainant’s father as to inculpatory admissions made to him by the appellant in considering the general reliability of the complainant’s evidence.

While the jury were entitled to accept the complainant’s general evidence that the offences occurred on a number of occasions, they could not use that evidence to extend her specific evidence which identified the occurrences by reference to the dates of arrival in Innisfail for the wedding and of the wedding. As there were only two mornings prior to the wedding when the conduct sworn to by the complainant could have occurred, 20 and 21 June, and as she also swore that it was repeated on “the morning after the wedding”, which was 23 June, the appellant could not have been convicted of more than three offences on the evidence, and he is entitled to a verdict of acquittal on the third count. He is also entitled to have the counts on which he was convicted specifically related to the three material dates, 20, 21 and 23 June 1995.

The second basis of the first ground of appeal is that the evidence in relation to count four alleges more than one offence and therefore, contrary to S. v. R., there may not have been any concurrence amongst the jury members as to the facts and circumstances constituting that count.

In relation to this count, the complainant said that on the morning after the wedding the appellant once again got into her bed and interfered with her. The following evidence was given:

“Did anything happen after the wedding day? - Yes, Ken would come in in the mornings and I would pretend to be asleep and then he’d kiss me on the lips and he’d like - then I’d like wake up but not - wouldn’t wake up straight away. I’d pretend that I’d been asleep and I’d wake up and then he’d get into bed and then he’d feel my breasts and insert his finger and he’d asked me whether it hurt and I’d say yes.”

It is this statement which counsel submitted offended the principle against

duplicity stated in R. v. S..

In re-examination the complainant was asked on how many occasions after the wedding the accused did something to her. She stated:

“I only remember one exactly and the others I don’t, like - if there’s others - there was a couple of others but I can’t remember exactly what happened and Julie told me not to put them in unless you can exactly remember.”

There was evidence that “Julie” was involved in the investigation of the complaints and that she had told the complainant as the complainant stated above.

In our opinion, it cannot be said that, when looked at as a whole, the complainant's evidence in relation to count four was not specific or referable to one occasion only. Her evidence of this count described a particular and single incident. Thus, the difficulties mentioned in S. v. R. do not arise.

The second ground of appeal can be disposed of briefly. At the trial, by far the strongest evidence as to the date of arrival at Innisfail was that of the appellant’s wife’s diary entries. The accuracy of these diary entries were not really challenged by the Crown. The new evidence which was led on appeal merely confirms their accuracy. There is no basis to this ground of appeal.

Subject to any necessary amendment, the appeal in relation to counts one, two and four should be dismissed. The appeal in relation to the third count should be allowed.

There is no reason to interfere with the sentences on the offences of which the appellant remains convicted.