R v Wherrett

[1996] QCA 252

IN THE COURT OF APPEAL	[1996] QCA 252
SUPREME COURT OF QUEENSLAND

C.A. No. 146 of 1996.

Brisbane

[R v. Wherritt]

T H E Q U E E N

v.

ALLAN CHARLES WHERRITT

Appellant

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Fitzgerald P.
McPherson J.A.

Pincus J.A.

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Judgment delivered 02/08/1996

Separate Reasons for Judgment of each member of the Court, concurring as to Orders
to be made.

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APPEAL AGAINST CONVICTION DISMISSED.

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CATCHWORDS:	CONVICTION - unsafe and unsatisfactory.
Counsel:	Mr P Rutledge for the respondent. Mr A Rafter for the appellant.
Solicitors:	Queensland Director of Public Prosecutions for the respondent. Legal Aid Office for the appellant.
Hearing date:	14 June 1996.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 02/08/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of
Pincus J.A.

All 12 counts related to a period of less than three weeks, from 3 to 20 August 1995, during which period the complainant’s birthday occurred, on 14 August 1995. The appellant was completely acquitted in respect of only those counts which related to alleged offences on 10 August 1995; on the evidence, the jury could understandably not have been satisfied beyond reasonable doubt that the complainant visited the appellant on that date.

The appellant was convicted of the five counts with which he was charged relating to offences on 12 and 20 August 1995, and also convicted of one offence of indecent assault on each of 3 and 6 August 1995. In respect of another count relating to 3 August 1995, he was acquitted of indecent assault but convicted of indecent dealing, and, similarly, in respect to two other counts relating to 6 August 1995 he was acquitted of indecent assault, but convicted of indecent dealing. I see no difficulty in the different verdicts returned in relation to these dates; the jury might not have been satisfied beyond reasonable doubt that the complainant did not consent to some of the activity which the appellant engaged in, while accepting that the prosecution had established an absence of consent in relation to other counts. As Pincus J.A. has stated, the different verdicts are not alleged to be inconsistent, although no doubt they form part of the circumstances to be considered in relation to the appellant’s contention that his convictions are unsafe and unsatisfactory.

Both complainant and appellant gave evidence, as did the complainant’s mother, who was on the premises on each occasion on which the alleged offences occurred. For the appellant, it was emphasised that not only did the appellant’s evidence contradict that of the complainant, her evidence was uncorroborated and she had not complained to her mother or required her mother’s presence when she was being “treated” and continued to return for “treatment” despite the conduct she attributes to the appellant. There was also at least one inconsistency in the complainant’s evidence at trial compared to her original statement to investigating police and the evidence of the witness Dahl, to which Pincus J.A. has referred.

None of these matters, alone or in combination, makes the case one in which the jury could not reasonably have accepted the complainant’s evidence and been satisfied, on the basis of that evidence, of the appellant’s guilt.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 2nd day of August 1996

For the reasons given by Pincus J.A., which I have read, I agree that this appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 02/08/1996

This is an appeal against conviction. The appellant, a middle-aged practitioner of alternative medicine, was indicted on 12 counts of having unlawfully and indecently assaulted the complainant, a girl who turned 16 years of age on 14 August 1995. Nine of the counts specified dates prior to the complainant’s 16th birthday, from 3 August 1995 to 12 August 1995; the last three counts were of offences allegedly committed on 20 August 1995, after the birthday. In relation to the first nine counts the jury was asked to consider alternative verdicts of indecent dealing.

The counts of unlawful and indecent assault were laid under s. 337 of the Code and in relation to three of them, alleged to have been committed on 10, 12 and 20 August, a circumstance of aggravation under the second paragraph of s. 337 was alleged, namely that the assault consisted in part of penetration of the complainant’s vagina with the appellant’s finger. In respect of two of the counts, verdicts of not guilty of indecent assault under s. 337 and not guilty of the alternative verdict of unlawful and indecent dealing with a child under the age of 16 years were returned. In relation to three other counts of unlawful and indecent assault, the verdict was not guilty of the count charged, but guilty on the alternative verdict under s. 210(1); those counts related to alleged offences, one of which was said to have been committed on 3 August 1995 and two on 6 August 1995.

There was some discussion at the hearing about the means of reconciling the various verdicts, but Mr Rafter for the appellant advanced no argument based on inconsistency of verdicts. It is worthwhile, however, to note that the two complete acquittals, on the charges for offences on 10 August 1995, seem to have been due to the circumstance that the appellant denied having seen the complainant on that day and some independent evidence was led supporting his denial. This does not mean, of course, that the jury accepted that independent evidence, or inferred from it that the complainant was not to be believed; that evidence may merely have raised a doubt about the accuracy of the dates given. With respect to the three instances in which the jury returned the alternative verdict, that of guilty of indecent dealing, it is possible that the jury was in doubt about the question of consent. But as I have said, it is not suggested that the guilty verdicts should be set aside on the ground of inconsistency with other verdicts. The only ground of appeal is that the verdicts are unsafe and unsatisfactory. The case is one where there was held to be no corroboration; however, the jury might have obtained assistance from the evidence of one Dahl, and from that of the complainant’s mother.

The offences alleged were all committed during a course of treatment which the appellant administered to the complainant, principally, it was said, in the hope of assisting her to reduce her weight. Her mother gave evidence that the complainant contacted the appellant as a hypnotherapist and the complainant gave evidence to similar effect. But when mother and daughter went to see the appellant, they were told that what he had in mind was to massage the complainant as well as using hypnotherapy. His explanation of the necessity for massage, according to the Crown case, was that it would help the lymphatic system, and that accorded with the appellant’s evidence. But the appellant swore, and the complainant’s mother denied, that she told the appellant that her daughter had "quite a big problem" with mastitis; that difference in the evidence has some significance, as will appear.

On the complainant’s version she made six visits to the appellant for treatment; the counts related to all but the first. On the Crown case, there was throughout the period of treatment an increase in the appellant’s boldness in his "massage". It was said that he started by massaging the complainant’s breast and buttocks, on the second visit he began to massage near her anus and in the region of her groin; on the third, and then on the fourth he put his fingers on her vagina; on the fifth visit, according to the complainant, the appellant put his finger in her vagina and rubbed her clitoris, as well as rubbing her breasts and nipples; on the last, he again put his finger in her vagina, rubbed her around the anus, put his head between her legs close to her vagina and then had her put her hand on his erect penis; the complainant alleged that he then pushed up hard against her buttocks with his erect penis.

According to the complainant’s mother, when discussing with the appellant the treatment which he was to administer, no mention was made of massage in the groin area or the buttocks; although she used attend on each occasion, the mother was never asked to stay in the consulting room.

The appellant’s version of events was very different from that put forward by the complainant, and in important respects was inconsistent with that given by the complainant’s mother. According to the appellant, his training consisted principally in a six day course in Bundaberg, a three day week-end with a Chinese masseur and a three day week-end doing "deep muscle and ligament therapy". In cross-examination of the complainant, it seemed to be accepted that the appellant claimed to have some worthwhile knowledge of treatment of the lymphatic system, apparently dealt with in one of those 3-day courses, and the appellant’s evidence was to the same effect; but he gave no explanation of how it came about that he was qualified in that respect. That the appellant had no training which could properly qualify him to do what he claimed to do, such as treating the lymphatic system and mastitis, would in my opinion in itself have inclined an intelligent jury to be sceptical of his credit, regarding him as a mere charlatan.

What was not in issue was that for much of each period of treatment the complainant was being massaged, while naked or almost naked, by the appellant and that the massage included rubbing in the region of the buttocks, breasts and groin; this occurred while the complainant’s mother was in another room. The explanation for the mother not being present in the treatment room, given by her, was that she was not asked to come in; the appellant said in effect that it was at the complainant’s insistence that, despite his wishes, her mother was absent from the treating room, and that he on every occasion, unsuccessfully, tried to persuade the mother to come in; he said the mother was "very, very, determined". The fact that for part of the treatment the complainant was naked was, according to her, due to a request from the appellant; he "convinced me, he continued to talk about taking my underpants off". The appellant denied this and said that the complainant took her underpants off without being asked which was a matter of "shock" and "great concern" to him. He protested and eventually persuaded her to replace her underpants. On these points - how it came about that the massages were done while the complainant’s mother was present at the appellant’s premises, but not in the treatment room, and how it came about that the complainant’s underpants were removed - there was nothing particularly compelling about the appellant’s case. The jury were entitled to think it pretty odd that, even on his own version of events, the appellant who was initially approached to treat this girl by hypnotherapy for a weight problem and who had no worthwhile knowledge or qualifications relating to medical matters, was rubbing the girl’s unclothed body on the supposition that by doing so he would correct defects in her lymphatic system and cure various ailments such as mastitis and asthma. The jury might have noticed that, on the appellant’s evidence, (which the complainant’s mother denied) there was a complaint about mastitis, but it was said to be a condition which had ceased.

There were, however, some apparent deficiencies in the Crown case and these were said by the appellant’s counsel to vitiate the verdict. There were seven verdicts of indecent assault, two with circumstances of aggravation. There were three verdicts of indecent dealing, all relating to charges based on the visits by the complainant to the appellant, on 3 and 6 August 1995; as I have mentioned, one might assume that these three verdicts were based on the view that there was a doubt about the question of consent. But all the verdicts having to do with the last two visits, those of 12 and 20 August 1995, were of indecent assault; it will be recalled that the complainant’s version of what happened on these two occasions, according to her, the fifth and sixth visits, included interference with the complainant’s vagina.

The appellant’s counsel relied, as an indication that the verdicts were unsafe, on the evidence of a witness T M Dahl, who said he had a number of conversations with the complainant; Dahl described himself as well-known to the complainant’s family and "a bit like a brother to her". He said that in July or early August the complainant told him that she had been to a hypnotherapist who massaged her "all over" including on the breasts. When he asked her "Did he give it a bit of a pat?" the complainant "said that he had to do that because that was where the glands - and that was part of the weight loss business". In a second conversation the complainant told Dahl, he said, that the hypnotherapist was doing the same things and he told her not to go back, but the complainant said "He’s doing good. I have lost weight.". On 12 August she told him that the hypnotherapist was "up to his old tricks" and when asked whether "he was still giving it a feel" she said "And more". Dahl told her not to go back and she said she had "lost three kilos and she told me not to tell her father". On 20 August (the date of the last visit), the complainant rang Dahl, according to him, he asked how it went and "she said it was worse"; Dahl went to see the complainant and this led to the matter being mentioned, for the first time, to the complainant’s mother.

If Dahl’s evidence were accepted it would tend to make the jury think that a reason for the complainant not refusing to go back to the appellant and not telling her mother what was happening was that she was worried about her weight and thought that the appellant might be helping to reduce it. When asked why she did not raise the matter with her mother, the complainant said that she was embarrassed; she also said that she told her mother that she did not want to go. When asked whether anyone was forcing her to go back she answered:

"Mum had paid all the money, and also your client continued to go on
about how the lymphatic system and I was toning up, he said."

On this evidence it appears to me that the jury could not have found that the complainant believed the appellant’s treatment was useless, so far as weight loss was concerned. But it was still quite open to the jury, if they accepted the complainant, to be satisfied of the truth of her evidence that the indecent treatment of her was not something to which she consented, or which she desired. On the complainant’s version of events, she was certainly reluctant to tell her mother what was happening, but the reasons she gave for that do not seem implausible.

If the jury accepted that the complainant told Dahl about the indecent treatment of her, on a number of occasions, they had to choose between acting on the basis that these repeated complaints to Dahl were all untrue or that the complainant was in fact indecently treated; the jury were plainly satisfied, to the requisite standard, of the latter proposition.

A number of other points were taken in support of the argument that the verdicts were unsafe, but the only matter of consequence, as it seems to me, is the submission that in the whole of the circumstances the jury should have had a doubt about the question of consent. The jury must I think have done so, with respect to those of the earlier incidents (3 and 6 August) in relation to which the alternative verdict of indecent dealing, rather than that of indecent assault, was returned. With respect to the last five assault verdicts, relating to 12 and 20 August, if the complainant were accepted as to what occurred, rejection of the charge of assault on the basis that there might have been consent would have seemed an unreasonable outcome; these were the occasions on which there was very substantial sexual interference. The contention that verdicts of assault were not open only has any substance, in my opinion, with respect to counts 2 and 5, charging incidents which occurred on the first two visits. Each count related to massaging the complainant’s breasts; the complainant’s version, which the jury must have accepted, was that the appellant massaged the whole of her breasts and spoke in laudatory terms of them. The appellant denied these allegations, but if they were accepted then in my opinion, despite what was said to Dahl, it was well open to the jury to find that these contacts amounted to assaults. The verdicts relating to treatment of the complainant’s breasts gain support if one accepts, as the jury was entitled to do, that the appellant made up a story about the complainant having had trouble with her breasts a month before she came to see him, presumably as an excuse for having paid great attention to that region of her anatomy.

I note that if there were consent, but that was obtained by fraud, the appellant would be guilty of assault; the complainant seems to have been a credulous girl. In the circumstances of this case it is possible that the jury approached their task by this route, but it is unnecessary as it seems to me, to discuss that matter.

In my opinion the verdicts which were reached were well open to the jury; they were both safe and satisfactory and the appeal should be dismissed.