R v W

[2002] QCA 524

SUPREME COURT OF QUEENSLAND

CITATION:

R v W [2002] QCA 524

PARTIES:

R
v
W
(appellant)

FILE NO/S:

CA No 302 of 2002
DC No 35 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie

DELIVERED EXTEMPORE ON:

28 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2002

JUDGES:

Davies and Williams JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed

2.   Amend the sentence imposed below to a sentence of imprisonment for 9 months on each of counts 2 to 5 inclusive, to be served concurrently

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE AND INSUPPORTABLE VERDICT – where appellant convicted of four counts of indecent dealing and acquitted on one count of maintaining an unlawful sexual relationship and five counts of indecent assault – where appeal against conviction – whether verdict unsafe and unsatisfactory – whether guilty verdicts inconsistent with acquittals on remaining counts – whether rational basis for differing verdicts

Criminal Code (Qld), s 229B(2)

MacKenzie v The Queen (1996) 190 CLR 348, referred to
R v Crofts [1999] 1 Qd R 386, followed

COUNSEL:

N V Weston for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HELMAN J:  On 30 July 2002 the appellant, a farm labourer then aged forty-six years, came before the District Court at Gympie to answer an indictment in which it was alleged he had committed eleven offences on his stepdaughter, now an apprentice hairdresser.  She was born on 25 August 1983, and so was eighteen at the time of the proceedings in Gympie. 

The Crown case was that each of the offences alleged in the first five counts was committed after the complainant had turned fourteen and before she was sixteen, although the date alleged in count 4, a date unknown between 31 December 1999 and 26 August 1999, was erroneous.  No point was taken about that error in the Court below or here and the only evidence on the subject was that the offence in question took place at the beginning of 1999.  On count 1 the appellant was charged with maintaining an unlawful relationship of a sexual nature with the complainant, a child under the age of sixteen years, and it was alleged that in the course of the relationship he unlawfully and indecently dealt with her, a child under the age of sixteen years, and that he had her under his care for the time being.  Counts 2 to 5 inclusive were allegations of his unlawfully and indecently dealing with the complainant, a child under the age of sixteen years whom he had under his care for the time being.  Counts 6 to 11 inclusive were allegations of his unlawfully and indecently assaulting the complainant - all assaults having been committed after the complainant turned sixteen, on the Crown case.

The appellant pleaded not guilty to all counts and a jury was empanelled.  The only witnesses for the Crown were the complainant, her mother, a school nurse, and an investigating police officer.  The appellant did not give or call evidence. 
At the conclusion of the evidence, on 31 July 2002, the jury returned a verdict of not guilty on count 9 on the direction of the learned trial judge because there was no evidence on that count.  Her Honour left the remaining counts for the consideration of the jury.  The jury found the appellant guilty on counts 2 to 5 inclusive and not guilty on counts 1 and 6, 7, 8, 10, and 11.  Her Honour ordered that the appellant be imprisoned for nine months, making one order in relation to all of the offences of which the appellant was found guilty.  She made no recommendation for post-prison community-based release.

The appellant's ground of appeal is that his convictions are unsafe and unsatisfactory and contrary to law. 

The Crown case on count 2 was that the appellant had pulled the complainant onto his lap, held her there, rubbed his hand up her leg, and touched her vagina moving his hand around in circles. The Crown case on each of counts 3 to 11 inclusive was of a brief - not more than ten seconds - touching of a breast. On count 10 the Crown case was of kiss on the lips accompanying the touching. The Crown case was that the requirement of s.229B(2) of the Criminal Code in relation to count 1 could be satisfied by findings of guilty on any three of the indecent dealing charges.
The only witness to give an account of the incidents in question was the complainant, whose evidence was not corroborated.  There was no evidence of her having made an early complaint.  She agreed when cross-examined that there was antipathy between her and the appellant.  It was under cross-examination too that she gave her clearest evidence on the subject of her response to the appellant's approaches:  she said that on each occasion he touched her improperly she told him to stop and he did so immediately.

The complainant's mother, who gave her occupation as learner support teacher and advisory visiting teacher for intellectual impairment employed by Education Queensland, had married the appellant in March 1989.  The marriage endured until October 2000.  She gave evidence that on occasions she had left the complainant alone with the appellant and that at no time did she see the appellant touching her daughter improperly.  The school nurse gave evidence of the complainant's referring in November 2000 to only one incident of the appellant's touching her - when she was thirteen years old.  The evidence of the police officer has no relevance to the issues before us.

It was submitted on behalf of the appellant that the verdicts of the jury were inconsistent and therefore the verdicts on counts 2 to 5 inclusive are unsafe and unsatisfactory.  It was said that when the evidence is scrutinized it would be apparent that there was no rational basis for the verdicts returned.  The main inconsistency relied on by the appellant could be said to arise in the following way.  The complainant was the only witness to give evidence about the incidents in question.  The jury appear to have doubted her account concerning the incidents the subjects of counts 6, 7, 8, 10 and 11, so how is it possible that they could have accepted her account beyond reasonable doubt concerning the incidents the subject of counts 2 to 5 inclusive?  The quality of her evidence concerning the latter incidents was the same as that concerning the incidents the subjects of counts 6, 7, 8, 10 and 11.  It was further argued on behalf of the appellant that the inconsistency of verdicts was compounded by the acquittal of count 1 even though the appellant was convicted on all four counts of indecent dealing. 

The obligation to establish inconsistency of verdicts rests upon the person asserting inconsistency, but if, after according the jury's verdicts the respect to which they are entitled and duly allowing for the jury's taking a merciful view of the facts on a count or counts, an appellant court concludes that such an inconsistency rises to the point at which intervention is required to prevent an injustice, convictions will be set aside: see MacKenzie v. The Queen (1996) 190 C.L.R. 348 at pp. 366-368 per Gaudron, Gummow, and Kirby JJ.

Proof of the absence of consent was, of course, not necessary on the charges of indecent dealing but was necessary on the counts alleging indecent assault.  Consistently with the complainant's evidence to which I have referred that once she told the appellant to stop he did so, the jury could have taken the view that they could not be satisfied beyond reasonable doubt that up to the time at which the complainant told the appellant to stop there had been an assault.  Such a conclusion would be a rational one, but, even if that were not the jury's reasoning, the discrepancy in verdicts could be explained by their having taken a merciful view of the facts.
Accordingly I conclude that there is no substance in the first part of the argument advanced for the appellant:  there is a rational explanation for the inconsistency between the verdicts on counts 2 to 5 inclusive and those on counts 6, 7, 8, 10, and 11.

In directing the jury on count 1 her Honour told them that there could not be a maintaining "without proving the three offences, but you can prove the three offences without having the maintaining".  Her Honour continued, "It is a matter for you as to whether or not the particular character of the relationship points to the existence of a relationship that has been maintained."  Those directions were, in my view, quite clearly correct, and it was open to the jury on the complainant's evidence to conclude that the instances of touching which led to the charges of indecent dealing were random incidents which fell short of evidence of the appellant's having maintained an unlawful relationship of a sexual nature with the complainant.  Such a conclusion would be consistent with the evidence of the antipathy between the complainant and the appellant.  I therefore conclude that the second part of the argument for the appellant also fails. 

I should dismiss the appeal, but I should amend the sentence imposed by her Honour to a sentence of imprisonment for nine months on each of counts 2 to 5 inclusive, those sentences to be served concurrently. As I have mentioned, her Honour purported to impose a single sentence of imprisonment for those offences. A sentencing court has no power to impose such a sentence: see R. v. Crofts [1999] 1 Qd.R. 386. This matter has been discussed with counsel in the course of the hearing of the appeal, and no objection was taken to that alteration of the penalty imposed below.

DAVIES JA:  I agree.

WILLIAMS JA:  I agree.

DAVIES JA:  The orders are as indicated by Mr Justice Helman.

‑‑‑‑‑