R v W - [1995] QCA 49

IN THE COURT OF APPEAL [1995] QCA 049

SUPREME COURT OF QUEENSLAND

C.A. No. 433 of 1994

Brisbane

[R. v. W]

THE QUEEN

v.
W

Appellant

PINCUS J.A. DAVIES J.A. McPHERSON J.A.

Judgment delivered 03/03/1995

Judgment of the Court

A	PPEAL DISMISSED.

CATCHWORDS: CRIMINAL LAW - INDECENT DEALING - recent complaint; whether complaint made at earliest reasonable opportunity; whether complaint capable of supporting the reliability of complainant's evidence; whether verdict unsafe and unsatisfactory because of inconsistencies in complainant's evidence; whether complainant coached.

Counsel:	Ms. D. Richards for the appellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 29 November 1994

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 3rd day of March 1995

The appellant was convicted on 4 October 1994, after a trial in the District Court, of indecent dealing with M, a girl under the age of 12 whilst in his care. He appeals against that conviction.

At the time of the alleged commission of the offence, 3 July 1993, M was about 9½. She was nearly 11 at the time of trial. Her parents were separated. She lived with her father and step-mother but spent two weekends out of four with her mother and the appellant who lived in a de facto relationship.
On Saturday 3 July 1993 which was on a weekend which M was spending with her mother and the appellant she awoke to find the appellant sitting on her bed. His jeans and underpants were down and his penis was exposed. He said: "Look at this". He then forced his penis into her mouth. Afterwards he put her hand on his penis. She took it away after a short time and he then pulled up his trousers and walked out.
When she gave evidence M said that she told her brother S what had happened either on the same day or the next day. However her brother, who also gave evidence, said that she told him about it a week later. In cross-examination M accepted that this was also what she had said on an earlier occasion. It may be accepted for the purposes of this appeal that M's complaint to her brother A was made for the first time about a week after the alleged commission of the offence.

The first ground of appeal is that this complaint should not have been admitted because it was not made "at the earliest reasonable opportunity": Kilby v. The Queen (1973) 129 C.L.R. 460 at 466; R. v. Osborne [1905] 1 K.B. 551 at 561. M had remained at her mother's house for the balance of Saturday and

all of Sunday. She had then returned to her father's house where she had remained all of the following week before making the complaint on the following weekend. For most of that week she was in the company of her brother A. He was with her at her mother's house on the weekend…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v W

Details

AGLC: R v W [1995] QCA 49
Case: [1995] QCA 49
Decision Date: 3/03/1995

CaseChat Overview and Summary

In the Court of Appeal, the Queen brought an appeal against the decision of the District Court, which had convicted W of indecent dealing with a child under the age of 12 while in his care. The appellant, W, was convicted on 4 October 1994, and the appeal was heard on 29 November 1994. The key legal issues before the Court of Appeal were whether the complaint made by the victim was admissible as evidence, whether the verdict was unsafe and unsatisfactory due to inconsistencies in the victim's evidence, and whether the victim had been coached in her testimony.

The Court of Appeal held that the complaint made by the victim was admissible, despite not being made at the earliest reasonable opportunity. The Court found that the complaint was capable of supporting the credibility of the complainant's evidence, considering the circumstances surrounding the complaint, including the age of the victim, the time elapsed since the alleged offence, and the fact that the complaint was made spontaneously and not prompted. The Court of Appeal also held that the inconsistencies in the victim's evidence did not render her testimony unreliable, as the inconsistencies could be attributed to the victim's age, the time elapsed between the offence and the trial, and the manner of her cross-examination. Finally, the Court found that the reminder by the victim's father and step-mother did not render her evidence unreliable.

The appeal was dismissed, and the conviction of the appellant was upheld. The Court of Appeal found that the evidence was sufficient to support the verdict, and the trial judge's decision was correct. The case serves as an important reminder of the importance of considering the circumstances surrounding a complaint in a sexual offence case and the need for careful cross-examination of child witnesses.

Orders