R v Townsend

[1997] QCA 457

IN THE COURT OF APPEAL	[1997] QCA 457
SUPREME COURT OF QUEENSLAND

C.A. No. 150 of 1997

Brisbane

Before Macrossan CJ
Pincus JA
Byrne J

[R. v. Townsend]

THE QUEEN

v.

BRIAN ANTHONY TOWNSEND

Appellant

Macrossan CJ
Pincus JA

Byrne J

Judgment delivered 19 December 1997

Joint reasons for judgment of Macrossan CJ and Byrne J. Separate reasons of Pincus

JA, concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - two counts of indecent dealing with a girl under 16 - whether verdicts unsafe and unsatisfactory due to deficiencies and inconsistencies in the complainant’s account of the dates and descriptions of the offences - relevance of trial judge’s withdrawal of rape charge from jury.
M v. The Queen (1994) 181 C.L.R. 487
Counsel:	Mr J.A. Jerrard QC for the appellant. Mr P.F. Rutledge for the respondent
Solicitors:	Boe and Callaghan for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	23 July 1997

JOINT REASONS FOR JUDGMENT - MACROSSAN CJ AND BYRNE J

Judgment delivered 19 December 1997

The appellant was found guilty by a jury on two counts of indecent dealing with a girl under the age of sixteen. The first count alleged an offence on a date unknown between 15 April 1995 and 31 May 1995 and the second on a date unknown between 15 April 1995 and 1 July 1995. The appeal against conviction is brought on the ground that the jury verdicts are unsafe and unsatisfactory.

A third matter had been charged in the indictment, an offence of rape on a date unknown between 15 April 1995 and 1 July 1995 but at a late stage in the proceedings after the jury had retired to consider their verdicts the trial Judge withdrew that count from their consideration indicating that she would take their verdicts only on the first two counts.

All three charges involved the same complainant a young girl born on 30 November 1981. At the time of the alleged offences she was 13 years of age and 15 when she gave her evidence at the trial.

The complainant worked as a babysitter in the household of the appellant, his wife and their two young children. There was an association between the complainant’s parents and the appellant and his wife and it was as a result of some conversation between those persons that the complainant commenced to act as a babysitter to the appellant’s children.

In giving her evidence the complainant displayed considerable uncertainty about some details especially the dates of the relevant episodes. She said that the offences took place in the appellant’s house on three separate Saturdays when the appellant’s wife was absent from the house attending to shopping needs. Not only were there uncertainties in the complainant’s ascription of dates to the events but there were variations, made much of at the trial, between details of her evidence there and what she had stated at the committal hearing and said to the police in the course of two interviews.

The appellant had also been interviewed by the police and both then and when he gave his evidence at the trial he denied the complainant’s claims. He said that nothing of a sexual nature had occurred between them.

While the complainant was uncertain about dates and freely admitted her uncertainty the Crown case remained that the three episodes charged all occurred between the spread of the dates contained in the three counts of the indictment, that is, between 15 April and 1 July 1995. Although the case against the appellant did not depend upon a finding concerning the dates on which the offences occurred, the trial judge in her summing up indicated to the jury that the effect of the Crown case was that the likely date of the first offence was 22 April, that of the second offence 6 May, and that of the third offence 27 May. All of these dates fell on Saturdays in the year 1995. There was no dissent from counsel on either side that this was a fair statement of the Crown position.

A number of witnesses gave evidence at the trial. Apart from the complainant and the appellant there was evidence from the appellant’s wife, expert medical evidence and evidence from other sources as well. In stating reasons for the disposal of this appeal it is not necessary to refer to all of this evidence in detail.

Both the complainant and the appellant were cross-examined at considerable length and in the case of the complainant much of it was devoted to revealing and exploring the areas of uncertainty in her account. Ultimately the case against the appellant depended upon the acceptability in the jury’s eyes of the complainant’s account. She had made no fresh complaint and there was no corroboration. She continued to work as babysitter after the alleged offences had occurred which she explained by saying that the appellant and his wife were friends of her family and she thought that she would not be believed if she did complain. Furthermore, at the time of the alleged offences she was not getting on well with her mother.

Her allegations against the appellant came to light only in November of 1995 when a letter written by her to a boy in whom she was interested was not sent and was discovered by her mother. The letter made reference to her having been raped by a man for whom she was babysitting. After the discovery of the letter and discussion of its contents the complainant at first denied the suggestion of rape but the matter was taken to the police and the complainant made her various allegations.

The complainant, in admitting her uncertainty about dates in the course of her evidence, said that she had “never been clear on dates”. When her versions, given at different times, are examined it is clear enough that she had tried to use key events to assist in ascribing dates to the episodes. Still, no consistent picture emerged. At first she had told the police that her babysitting arrangements with the appellant and his wife commenced at the beginning of 1995, but later it was accepted that this suggestion was wrong. It seems that she commenced at the Easter weekend following an arrangement made the weekend before.

Further illustrations of the lack of certainty in the complainant’s dating of the relevant events should be provided since this was an important part of the appellant’s argument that her evidence could not safely be acted upon.

When the complainant suggested that she commenced babysitting towards the beginning of 1995 she said the first incident charged occurred some two months later. By the time she gave her second statement to the police on 16 November 1995, she had altered her version to say that she started working at Easter in that year. This was accepted as being correct particularly having regard to dates on which she made deposits to her bank account. Then she made reference to a school social being disposed to place the date of the first episode in relation to that event and without being certain suggested that the second episode took place some two or three weeks later. She appeared reasonably clear that the first occasion charged did not occur on the first weekend when she started babysitting. The first relevant deposit to her bank account was on 21 April which was a Friday and thereafter up to the end of June there were deposits made on 2 May, 8 May, 15 May and then 30 June. Easter Sunday in 1995 fell on 16 April. When the lengthy questioning of the complainant in the witness box as well as her earlier assertions are taken into account there appeared in the end to be a reasonable basis established for the Crown’s suggestion that the complainant should be taken as pointing to the weekend after the Easter weekend as the date of the first offence.

The complainant said the first two matters charged occurred in the sitting room of the house and the third, the alleged rape, in the bathroom. On the first occasion she said she was sitting on the floor watching television and the appellant, who was behind her, put his hand around down the front of her top and fondled her breasts. At one time she said he was standing behind her and at another time her assertion was that he was sitting behind her.

She said that on the second occasion she was again sitting on the floor of the sitting room watching television when the appellant, from a position beside her, put his hand on her leg and then up under her clothing so that his finger entered her vagina. Responding to questions she went on to say that the second occasion might have been the day after the school social adding “but I could be wrong”. In the end a reasonable basis was established to support the Crown’s suggestion that her allegation should be taken as pointing to 6 May as a likely date for the second offence.

Upon the third occasion the complainant had gone to the bathroom when the appellant entered through a different door and pushed her down to the floor and after removing clothing lay on top of her and placed his penis in her vagina. She said he moved inside her before eventually getting off. She said that after this event she left the house and took one of the small children down to a nearby park. Eventually the appellant called her back to the house. She said that she then said to the appellant that what he was doing was not right. This third occasion was the one charged as rape. She said that it occurred a couple of weekends after the second incident but again she was unsure. On all of the evidence there was a reasonable basis for the Crown’s suggestion that her allegation concerning the third occasion should be regarded as pointing to 27 May.

It should be mentioned that the complainant during the relevant period babysat on Sundays as well as Saturdays. It appeared that she pointed to Saturdays as the days on which all three events occurred because of the appellant’s wife’s habit of leaving the house in the late morning for about an hour and a half on Saturdays to do her shopping.

After all of these events she continued from time to time to work for the appellant and his wife babysitting but no further offences are said to have occurred.

The appellant, denying all of the allegations, attempted to meet them by producing evidence essentially of an alibi nature suggesting that they could not have happened as the complainant charged. The complainant’s uncertainties about dates undoubtedly contributed to the appellant’s difficulty in collecting firm evidence to exclude opportunity on all of the occasions charged, but the general nature of the evidence he was able to produce should be indicated.

On one possibly relevant occasion it was said that the appellant’s wife was at home all day sick. On another occasion he and his wife were out together making a social visit. On another he was out shopping. At other times either his relatives or hers were staying with them. For a further period he, his wife and two children were absent from Brisbane. On one date suggested, 6 May, he said that a builder was doing work at his house. That builder was called as a witness and did have a diary referring to 6 May as one of the dates when he worked at the appellant’s house. However, unusually and in contrast with other occasions the diary did not mention the work done or the hours spent. The effect of the complainant’s evidence was there had been no builder there on the dates when any of the offences occurred. The appellant also produced evidence suggesting that certain TV programmes dealing with the topic of fishing were not being shown on any of the Saturdays that were possibly relevant. This was to meet the complainant’s suggestion that they were watching a fishing programme on TV when the first two offences charged occurred.

All of this evidence which the appellant produced was there for the jury’s consideration and although they may have regarded it as helpful in deciding the issues raised by the charges, they may also have thought that it fell short of sufficiently excluding opportunity if they were otherwise disposed to be persuaded of the truth of the complainant’s version.

When the complainant’s evidence is read, while it certainly shows that she had been and remained uncertain about dates and some other details she nevertheless adhered to a description of the central events in a way that does not necessarily create an impression that the events she described were unlikely to have occurred. In a similar way it has to be said that the appellant’s denials and the other evidence in the case do not, when considered apart from the complainant’s evidence, create an impression of being inherently unlikely or unworthy of belief. It can be added that there was medical evidence that the complainant’s hymen had been penetrated by what was said to be a penis, a finger or some other agency, but the medical examination was conducted after the events were brought to the notice of the police and hence well after the dates of the alleged offences and this evidence may not have been regarded as being particularly helpful in the resolution of the case.

This was a case where both appellant and complainant maintained their essential allegations and denials, and it was very much a matter where the jury with the advantage of seeing and hearing them give their evidence had to decide whether they were satisfied beyond reasonable doubt by the complainant’s version. It was a case of the kind described in M v The Queen (1994) 181 C.L.R. 487 where the jury had a particular advantage that the Appeal Court lacks in deciding whether the guilt had been established.

One other matter already referred to should be returned to before concluding. In her summing up the trial judge directed the jury that since the appellant denied all of the matters charged and it was not suggested that any of them took place with the complainant’s consent, there was no issue concerning consent raised for the jury’s consideration on the count of rape. No redirections were requested by either side as a result of this direction. After the jury had retired for a considerable period they returned to ask for redirections concerning rape, carnal knowledge and consent. The judge repeated the directions she had given on these matters saying in the course of them that an alternative verdict of unlawful carnal knowledge was not open on the rape count because consent was not an issue raised by the defence. Later the jury returned again, announcing that they had arrived at a verdict on the first two counts and asking if intercourse had occurred with the complainant’s consent it meant that the appellant should be found guilty of rape. After debate with counsel and largely because of the directions she had already given and the indications that were emerging that her directions were not being followed by the jury, the Judge was persuaded that it was unsafe to allow them to further consider the third count. She accordingly discharged them from the necessity of delivering a verdict on that count and took their verdicts on the first two counts only. This course was generous to the appellant because there were indications that the jury were disposed to conclude that sexual intercourse had happened on the third occasion charged even if they were not persuaded beyond reasonable doubt that it was without the complainant’s consent. Lack of consent was of course an issue that the Crown had to prove if the appellant was to be convicted of rape and it would not have been correct for the Judge to allow the jury to believe that it was open to them to find that rape was proved without, amongst other things, their being positively satisfied of the absence of consent. However the appellant has suffered no disadvantage from having an available alternative verdict of unlawful carnal knowledge withdrawn from the jury’s consideration. For present purposes the important feature is that this aspect of the trial does not tend to suggest that there was anything unsafe in the jury’s verdicts on the two counts on which they found the appellant guilty.

Overall, there is no reason to think that it was not reasonably open to the jury to find beyond reasonable doubt that the appellant was guilty of the first two counts. Those verdicts not being unsafe the appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 December 1997

I have read the joint reasons of the Chief Justice and Byrne J. and, subject to the remarks which follow, am in agreement with them. I agree that the appeal should be dismissed.

As to the first count, the complainant's evidence showed uncertainty as to the date of its occurrence, but the evidence pointed to 22 April 1995 as the most likely date. Against the complainant's version of events, assuming the correctness of that date, was the fact that the complainant's banking records were inconsistent with her having received any money for babysitting on 22 April 1995. That proposition depended on the following question and answer:

“It was your practice, certainly in the early part of your baby-sitting days,
to bank the money you received from baby-sitting on the Monday
following, or shortly after the weekend?-- Yes.”

The banking records show no deposit as having been made between 21 April 1995 and 2 May 1995. However 21 April 1995 was a Friday; presumably the money banked on that day was received on the previous Saturday, 15 April 1995. The record of bankings, about the relevant time, thus indicates that “shortly after the weekend”, in the question from which I have quoted, might include a gap of six days. In the circumstances it would not be irrational for the jury, if otherwise finding the complainant's account credible, to adhere to their view of it despite the suggestion that the banking records threw doubt on the proposition that the complainant babysat on 22 April 1995. The appellant's evidence was that the complainant “could have” babysat on that day.

A further reason, not simply based upon a clash of word against word, put forward on behalf of the appellant for raising a doubt about the first count, was evidence of the appellant's activities on the date I have mentioned, 22 April 1995. Mr Jerrard Q.C. submitted that for the jury to accept 22 April 1995 as the date of the first count, they would have had to reject the evidence of the appellant and his wife that they

“had gone shopping for his eldest daughter's wedding present” on 22 April 1995. If that

were so, it must have seemed less probable that his wife being absent from the house, the appellant interfered with the complainant on that day. The appellant said he had a receipt for the purchase then of the present, but there appears to have been no documentary evidence produced in relation to the critical date, 22 April 1995. The appellant said he did not know whether the shop from which the present was bought was at Toombul or Chermside. His wife said that she recalled that on the occasion in question the appellant came with her; she did not remember whether the complainant also did. She said that they “[w]ould have gone over to Chermside” and that the shop

“would have been a jeweller shop, I think”. It could have seemed odd, to the jury, that

Mrs Townsend's apparently vague recollection of the purchase was good enough to enable her to be sure of her husband's presence, but not to enable her to know whether the complainant was also present.

As to the second count, the most likely date (although there was uncertainty), appeared to be 6 May 1995 and Mr Jerrard contended that to accept that an offence was committed on that date the jury would have “needed to . . . reject the evidence of Noel Harm that he performed building services at the Townsend home on Saturday 6 May 1995".

Again, the evidence does not appear to me necessarily to support that proposition. As the joint reasons of the Chief Justice and Byrne J. have pointed out, on other occasions about the relevant time when Harm worked for the appellant, the number of hours worked were recorded and that was, Harm agreed, his “normal practice”. However, curiously, on the critical date there is no mention of the number of hours worked. Harm said he had no idea how much he was paid for the job he said he had done that day, nor was any document (other than the diary) relating to the work produced. Harm said that he did not “really remember what we were doing on that day”. He initially said that the work done was pouring a driveway, but he later, when shown a concrete invoice, said that the driveway could well have been done on another day, 2 May 1995.

Mr Jerrard argued that Harm's evidence gains strength from the fact that the complainant said that builders were working at the appellant's house on dates of which she was unsure and she said that, when that occurred, the appellant was mostly outside the house. But the difficulty with Harm's evidence, if one accepts that he was at the house on 6 May, is that it is quite uncertain what work, if any, he was doing there and how long he spent there.

It does not appear to me, then, that the evidence about the appellant shopping on 22 April 1995 or Harm working on 6 May 1995 provided a substantial barrier to acceptance of the complainant's story. Apart from the matters just discussed, there were numerous other reasons put forward by Mr Jerrard, in his comprehensive argument for holding the verdicts to be unsafe; I shall mention two which seem to me particularly to call for comment.

When asked why she went back babysitting after the occurrences of which she complained, the complainant answered “[b]ecause he was a friend of my family and I didn't want to tell anyone about what had happened”. That was said to be evidence of a kind which could not be reconciled with what was later said, which was to the effect that the complainant thought no-one would believe her. But I note that the second answer related to count 2 and the first to count 1; further, when the second answer was given the complainant added reference to the first explanation, as being an additional reason. There appears, then, to be little in this point; the impression given by the evidence is that the complainant was asserting that two reasons for continuing to babysit despite the appellant's conduct existed and, perhaps, that they operated on her mind at different times.

As Mr Jerrard pointed out, the evidence showed that the complainant never told her parents about the matters the subject of this appeal. They came to light when her mother found a letter written by the complainant stating “when I was being a nanny for some other people the father raped me”. Having read the evidence, relied on by the appellant, of the complainant's (adoptive) mother about circumstances relating to the letter I have formed the view that they are on the whole neutral - neither of assistance to the appellant's case nor to that of the Crown. Mr Jerrard said that the complainant having made an allegation of rape in the letter was consistent with an attempt to gain sympathy from the intended recipient of the letter, by a false allegation. That is certainly conceivable, but it does not seem necessarily incredible that this young girl, if subjected to sexual attentions from a family friend, should have been unwilling to disclose that to her parents, but was prepared to mention it to (as she asserted) some others.

Looking at the question of complaint broadly, the view adopted in courts is that in cases of this kind a late complaint or absence of complaint tends to show that the complainant's version is fabricated; accepting that doctrine as of some assistance to the appellant and adding to it the absence of corroborative evidence, one reaches the point of asking whether the factual inconsistencies and uncertainties in the Crown case are such as to throw sufficient doubt upon it to require allowance of the appeal. The answer depends in part on whether a careful reading of the appellant's version of events tends to convince one of its truth; in my view that is so, in the present case. Secondly, the answer depends on a question related to the first, and that is whether the inconsistencies in the complainant's evidence are of such a character as to appear, in the light of much experience of these cases, unusual or otherwise such as to suggest fabrication; again, in my view the answer to that does not favour the appellant. Mr Jerrard's thorough analysis of the Crown's weaknesses notwithstanding, I am left with the strong impression that the jury was entitled to be satisfied that the complainant's version of events was substantially true and that the verdicts reached were safe ones.

I agree that the appeal should be dismissed.