R v Waters

[2001] QCA 467

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waters [2001] QCA 467

PARTIES:

R
v
WATERS, Crystal Joy
(appellant)

FILE NO:

CA No 148 of 2001
DC No 1402 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2001

JUDGES:

McPherson JA, Ambrose and Cullinane JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed

CATCHWORDS:

EVIDENCE – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – GENERAL PRINCIPLES – where appellant convicted of 24 sexual offences – where the only evidence against appellant was that by complainant – whether convictions unsafe and unsatisfactory because of alleged inconsistencies of the complainant’s evidence

COUNSEL:

The appellant appeared on her own behalf
B Devereaux amicus curiae for the appellant

SG Bain for the respondent

SOLICITORS:

Legal Aid Queensland amicus curia for the appellant

Department of Public Prosecutions (Queensland), for the respondent

1. McPHERSON JA: I agree with the reasons of Cullinane J for dismissing this appeal.

1. AMBROSE J: I agree.

1. CULLINANE J: The appellant appeals against her conviction on some 24 sexual offences said to have been committed on the male complainant then under the age of 14 years.  The appellant was living in a defacto relationship with the complainant’s mother and was then known as L.  She has since taken the name of Crystal Joy Waters and presents as a female.  She is currently an inmate of the Brisbane Womens’ Prison.

1. The notice of appeal was prepared by the appellant and although it purports to include an application for leave to appeal against sentence, none of the grounds of appeal and none of the arguments, oral or written, were directed towards the matter of sentence.

1. According to psychiatric evidence before the learned trial judge, the appellant suffers from chronic paranoid schizophrenia, a diagnosis which seems to have been first made in 1983. 

1. In December 1998 the Mental Health Tribunal found the appellant unfit to plead but at a further hearing on 30 September 1999 it was found that she was then fit to plead. 

1. Some of the grounds of appeal and some of the matters raised in a written outline which the appellant handed to the court and which she at least in part repeated in oral submissions to the court, have no relevance to the appeal and are presumably a product of the psychiatric condition to which I have referred. 

1. The grounds of appeal which are relevant can, I think, fairly be regarded as a challenge to the verdicts upon the grounds that the convictions were unsafe and unsatisfactory.  In one of the grounds of appeal the appellant stated that she was not allowed to call character witnesses and witnesses of “that stated time” and in oral submissions to the court the appellant repeated this and also said that there were a number of photographs that ought to have tendered by her counsel and which were not tendered.  These grounds, that is those concerning the failure to adduce evidence, were not supported by any material placed before the court which would provide any basis for a conclusion that there is any substance in these arguments.

1. The appellant had applied for legal assistance and officers from Legal Aid Queensland had interviewed her.  She withdrew her request for legal assistance.  However, the appellant having expressed a wish to raise certain matters, Mr Devereaux for Legal Aid Queensland sought leave to appear amicus curiae and this leave was granted.  He drew the court’s attention to a couple of aspects of the evidence to which reference will shortly be made. 

1. The offences of which the appellant was convicted comprised some 15 counts of unlawful and indecent dealing with a boy under the age of 14 years and some 9 counts of sodomy with a person not an adult.  In relation to one of the counts (count 23) leave was obtained to amend the indictment and delete the reference to a child under 14 years and to substitute for that a child under the age of 16 years.

1. The first occasion that the complainant spoke to the police after the offences was in 1997, some 20 years after the earliest date mentioned in the indictments and 17 years after the latest date.  There was no explanation for the absence of any earlier complaint.  The only evidence implicating the appellant was that of the complainant. 

1. No complaint is made about the learned trial judge’s summing up to the jury.

1. The complainant was born on 26 April 1967 and thus would have been between 9 and 13 when the offences were committed. 

1. The appellant gave evidence at the trial denying each of the allegations made by the complainant.  She said in evidence that “my body was born L” and thereafter gave evidence referring in the third person to “L”. 

1. His Honour gave the jury warnings about the various matters which a case of this kind called for such as the lack of a complaint at the time, the difficulties facing a person in defending charges arising out of events many years earlier, inconsistencies in the evidence of the complainant and the lack of any independent evidence supporting the complainant’s evidence.

1. His Honour took the jury through the evidence on each of the counts referring to the appellant’s account after referring to the complainant’s account.  He summarised the arguments for both prosecution and defence in his summing up to the jury. 

1. Mr Devereaux drew specific attention to certain aspects of the evidence concerning counts 1, 2 and 3 (all of which were alleged to have been committed on the one occasion) and counts 11, 12, 13 and 14 (all of which were alleged to have been committed during a period when the complainant’s mother was in hospital giving birth).

1. Counts 1, 2 and 3 were, on the complainant’s account, committed on an occasion when the appellant was driving the complainant home from hospital.  The account given by the complainant was that the offence occurred in a Volkswagon Kombi van with a bench seat.  Although the complainant did not give in his evidence-in-chief of the colour of the vehicle he referred to it in cross-examination as a white vehicle.

1. The appellant gave evidence denying the offence and denying that he had such a vehicle at the time or indeed at any time.  There was evidence before the court of vehicles registered in the name of the appellant.  This came from a police officer and it did not include any Volkswagon during the relevant period which was March 1977 to January 1998.  The complainant’s mother gave evidence that whilst the family was at Beerwah the appellant had either one van originally red and then painted blue or two vans a red one and then a blue van (p. 82 R ll 40 to 60).  She said that the red van had a Medusa painted on it (p. 88 R ll 50 to 60).  She described this van or these vans “like a Kombi van thing” and “one of those vans with a door at the side”.  It might be expected that if the complainant was referring to the van with the Medusa painted on the side of it, he would have been likely to refer to this distinctive feature of the vehicle.  The jury, however, had the evidence of the complainant’s mother of the blue van of the type she described.

1. There was evidence that the appellant had a number of vehicles during the time covered by the charges.  Some of these, it would seem, were at times unregistered (p. 131 R ll 1 to 20) and it would seem some were registered in the name of a business (p. 131 R ll 20 to 25).  The police officer called to give evidence about registration gave evidence of vehicles registered in the name of the appellant (p. 104 R ll 15 to 20 and p. 105). 

1. I do not see when the evidence of the appellant herself is considered that it can be said that the evidence of the vehicles registered in the name of the appellant can be regarded as in any way determinant of whether the appellant had a vehicle of the kind which the complainant described counts 1, 2 and 3 being committed in.  Nor does the evidence of the complainant’s mother describing a van of a different colour give rise, in my view, to any concern that the jury’s finding of guilt on these counts is unsafe or unsatisfactory.  The issue whether the appellant had such a van was a live one on the evidence before the jury.  The complainant was 9 or 10 at the time these offences were committed and the evidence suggested that during the time the appellant lived with the complainant and his family, there were a number of different types of vehicles.  A difference between the complainant and his mother as to the colour of a particular vehicle may not have been seen by the jury as a matter of any great significance in the circumstances of this case.  I do not think that there is anything in the matters raised by Mr Devereaux in relation to these counts which ought to lead to the conclusion that it was not open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty of these offences.

1. The second matter raised concerns counts 11, 12, 13 and 14.  These offences were said to have been committed during a period when the complainant’s mother was in hospital giving birth to his brother Ken.  Ken was born on 25 March 1979. 

1. The complainant’s evidence was that the family was living at Beerwah at that time and on two successive nights the offences were committed when the complainant, at the suggestion of the appellant, slept in the bed normally occupied by the appellant and the complainant’s mother instead of his own bed.

1. Mr Devereaux draws attention to the evidence at page 103 of the record that the complainant was enrolled at the Lawnton State School on 19 March 1979 having left the Beerwah State School on 9 March 1979.  He was enrolled again at the Beerwah State School on 2 July 1979.  This evidence was led without objection from a police officer who obtained the information from the principals of the schools concerned. 

1. It was contended that this evidence is inconsistent with the claim by the complainant that the offences were committed at the home occupied by the family at Beerwah and that it is at the very least likely that the family by that time had moved to Lawnton where it is clear on the evidence they lived for some time. 

1. Nothing was made of the suggested discrepancy at the trial. It is perhaps not surprising that it was not.  It was the appellant’s evidence that he and the complainant were living at Beerwah at this time (p. 120 R ll 1 to 5):

“When Jackie was in hospital having Ken, where were you living?”  - - - “At Beerwah.”

“Who was living there with you?” - - -

“There was Colin, Jamie and Simon and Jackie.  There was another person.”

1. The appellant called her mother to give evidence that she moved into the family home at Beerwah during this period (p. 147 R ll 1 to 10).  The appellant’s mother gave evidence of sleeping arrangements which was, it was said, inconsistent with the account given by the complainant of having occupied the bed of the appellant.  Thus the appellant conducted a positive case in relation to these counts which necessarily included the fact of the family at Beerwah at the time.  Her mother’s  evidence however was not uncontested.  The complainant gave evidence that during this time the appellant’s mother did not stay at the Beerwah address overnight but rather looked after the children at her house during the day and the appellant took them to the Beerwah home each afternoon (p. 64 R ll 1 to 10). 

1. Assuming the correctness of the date of enrolment of the complainant at the Lawnton State School this would not necessarily exclude the possibility that the family were still living at the Beerwah home some six days later.  It was the evidence of all who spoke on the subject that they were living at Beerwah at the time the complainant’s brother Ken was born.  The suggested discrepancy between the enrolment records and the evidence that the family was living at Beerwah might have been capable of ready explanation.  However, as I have said, it was not averted to.

1. I should add that the appellant made a number of assertions about factual matters from the bar table in support of the claim that the family were not living at Beerwah at the time.  There was however no evidence before the court of any of the matters asserted by her. 

1. I do not think that there is anything in what has been raised in relation to counts 11, 12, 13 and 14 which gives rise to any real concern that the convictions on these counts were unsafe or unsatisfactory.

1. A consideration of the evidence as a whole as well of the particular matters to which our attention was drawn by Mr Devereaux, satisfies me that it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty of the offences of which he was convicted.

1. As I have said, no ground of appeal or oral or written submissions have been directed towards the issue of sentence and I do not understand any application for leave to appeal against sentence to have been pursued.

1. There were many others matters raised by the appellant which are not germane to any issue which arises upon the appeal and which are, as I have said, the likely product of the psychiatric condition from which she suffers.

1. The appeal should be dismissed.