R v W

[1993] QCA 146

IN THE COURT OF APPEAL [1993] QCA 146

SUPREME COURT OF QUEENSLAND

C.A. No. 54 of 1993

Brisbane
[The Queen v. W]

BETWEEN

T H E Q U E E N

v.

W

(Appellant)

The President
Mr Justice McPherson

Mr Justice Shepherdson

Judgment delivered 27/04/93

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS	CRIMINAL CODE s.210 - Evidence - Videotape - Relevance and admissibility - Judicial discretion - Fairness - Whether prejudicial effect outweighed probative value.
Counsel:	Mr Rafter for the applicant Mr Ridgeway for the Crown
Solicitors:	The Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 7 April 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 54 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Shepherdson

[The Queen v. W]

BETWEEN

T H E Q U E E N

v.

W

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 27/04/1993

The appellant was found guilty at his trial in the District Court of a series of offences committed against two young girls under 12 years of age. They were A aged 10, and K aged 6. They were the daughters of a woman who at the time was living with the appellant's son. The girls stayed with the appellant at weekends on three occasions during August and September 1991 when the offences were alleged to have been committed. In consequence each count in the indictment alleged as a circumstance of aggravation, and it was found by the jury, that the two girls were under his care at the time of the offence.

The appellant was arraigned on seven counts of offences against s.210 of the Criminal Code. Of these, the first count charged an offence against s.210(5) of exposing the two children to an indecent videotape, described in evidence as an "adult" version of Cinderella. The second count alleged that, contrary to s.210(6), the appellant had without legitimate reason taken an indecent visual image of the children; the image in question comprised a video film taken by the appellant of the two girls having a bath and being in the bathroom without clothes. The third count involved an allegation that in the presence of the children the appellant wore only a G-string of some type "and waved his penis around"; it was charged as an offence under s.210(4). There were also two charges of permitting indecent dealing contrary to s.210(3); they were permitting K to suck his penis in the presence of A, and having the two girls masturbate him. The seventh count alleged that the appellant rubbed his penis against the genitals of each girl : this was charged as indecent dealing under s.210(1). There was a further charge of attempting to procure the children to perform an indecent act, which is an offence under s.210(2) of the Code.

The appellant was found not guilty of the last of these offences but guilty of all the others. He was sentenced to various terms of imprisonment to be served concurrently. The effective sentence was two years imprisonment, not taking account of the period of some seven months he spent in custody before trial.

The appellant now appeals against his convictions and applies for leave to appeal against sentence.

At the hearing before this Court the only ground argued was para.4(b) of the notice of appeal. It refers to a video tape and photographs of two other girls (not A and K) that were admitted in evidence as ex.11 at the trial. The girls in the tape and photographs appear naked, and the complaint made in ground 4(b) is that the trial judge was wrong in ruling that that material was admissible; or, if admissible, in failing to exercise a discretion to exclude it from the evidence at trial.

The video tape was located in the course of a search of the appellant's premises. The two girls depicted in it have been described as "pubescent" and they are shown naked in various poses or activities in the film. The photographs appear to have been taken on the same occasion as the film, or they may be "stills" derived from the film itself. The relevant scenes form part of a much longer video tape, which was afterwards compiled by a police officer, who recorded on a single tape (ex.11) the contents of all the individual films found at the appellant's premises. Apart from those views of the pubescent girls and the bathing scenes which were the subject of the second count, the remainder of the film consists of family events or other innocuous activities.

At the trial, defence counsel objected to the admission of the film. The appellant's action in filming the pubescent girls was not the subject of any charge against him and it was not plainly proved that A or K ever saw the film he made of those girls. The precise basis for treating it as admissible in evidence does not emerge with complete clarity from what was said at the time of the judge's ruling. However, he evidently considered that ex.11 contained material that went, as he expressed it, to "negative a suggestion of concoction" by A and K, and he also stressed the "unwholesome" situation that was suggested by the evidence.

Another possible basis of relevance and admissibility is that the material in ex.11 tended to rebut any suggestion that there was, within s.210(6) of the Code, a "legitimate reason" for filming A and K in the bath. In that regard, it could not fairly be said that this was an instance of the prosecution crediting the accused with "fancy defences", and then seeking to scotch them in advance by adducing prejudicial evidence. The appellant had in his record of interview with the police claimed to be a person with an interest in nudity and a member of a nudist club. The pubescent girls were children of other members of the club. It was for the jury to decide whether in all the circumstances the appellant's film-making was an innocent activity or as the Crown contended a product of a prurient interest in young girls. The material in ex.11 was capable of bearing on that question.

In any event, we are relieved here of the need to consider the matter more closely. Mr Rafter who appeared for the appellant acknowledged in this Court that the contents of ex.11 were in law admissible at the trial. He confined his submission on appeal to arguing that ex.11 should have been excluded as a matter of judicial discretion. It is, however, difficult to see why, if ex.11 was in law relevant and admissible, it should have been kept from the jury as a matter of fairness to the appellant. Presumably the underlying complaint is that the prejudicial effect of the evidence outweighed its probative value.

It is, however, scarcely possible to sustain an argument along those lines once it is conceded that the evidence was admissible. What ex.11 tended to show was that the appellant had such a predilection for viewing naked female children that he was prepared to go to the trouble and expense of filming them presumably so that he could look at the film again on future occasions. Attitudes and behaviour of that kind are widely regarded in the community as aberrant, and they still remain sufficiently uncommon as to justify leaving the material in ex.11 to the jury to decide for themselves whether the appellant's conduct towards A and K was capable of bearing an innocent construction or otherwise. This may have been what the trial judge meant when he referred to the "unwholesome" situation that prevailed.

In short, we are not satisfied that in exercising his discretion not to exclude the material in ex.11, the trial judge was wrong, or that there has been any miscarriage of justice that calls for the intervention of this Court.

As regards sentence, the appellant is a man of some 57 years of age. At one time he was in the Army, and was later employed as a truck driver. He was formerly married and has grown-up children of his own. A factor in mitigation is that he has no previous convictions for this or any other kind of offence, apart from a breach of the Bail Act which was related to the present proceedings. What is, however, strongly against his application are the number, variety, and character of the offences themselves and the circumstances in which they were committed. The girls were young and they were entrusted to his care as an apparently responsible person of mature years. Almost no time was allowed to pass before the appellant began involving them in various lewd and shameful acts in which he was the leading participant. The experience they had under his tutelage can only have harmed their future outlook and attitudes.

The appellant could not have been under any illusions that what he was doing was wrong. His action in decamping while on bail shows that to have been so. It is unfortunately not possible to give him credit for saving his young victims from the ordeal of a trial. In the light of all these matters it is not possible to view an effective sentence of two years imprisonment, even following upon pre-trial custody of some seven months, as in any way excessive.

The appeal and the application for leave to appeal must be

dismissed.