The Queen v D

[1992] QCA 481

COURT OF APPEAL  [1992] QCA 481

McPHERSON JA
DAVIES JA
DERRINGTON J

CA No. 250 of 1992

THE QUEEN

v.

DAppellant

BRISBANE

DATE: 1 DECEMBER 1992

JUDGMENT

DAVIES JA:  The appellant who was charged with incest and indecent dealing was convicted of attempted incest and indecent dealing on an occasion which was some 6 years before the trial.  The appeal against it is against only the conviction for attempted incest and it is on the ground that the conviction was unsafe and unsatisfactory, the particulars being, firstly, that the circumstances relied upon to prove the intent to have sexual intercourse were equally consistent or more consistent with intent to obtain sexual gratification by rubbing the penis against or along the child’s external genitalia and, secondly, with the consequence that on the evidence the inference cannot be drawn to the standard of beyond reasonable doubt that the appellant attempted to have intercourse with the complainant as distinct from committing the offence of indecent dealing with her.  There is a consequential appeal against sentence if the appeal on that ground against conviction succeeds.

The main evidence against the appellant was the evidence of the child, his natural daughter.  Notwithstanding that the events were some 6 years before the trial, her evidence was quite clear and it was, so far as at least attempted incest was concerned, and perhaps even incest for reasons which I will mention in a moment, strongly supported by the medical evidence of damage to and in the area of the hymen.

The learned trial Judge has - it is really in effect conceded - misdirected the jury in the appellant’s favour by directing them that for incest it was necessary that the Crown prove penetration of the vagina whereas all that was necessary was penetration of the vulva.  The evidence, as I said, was consistent with that and was on the direction which His Honour gave the jury, which as I have said wrongly favoured the appellant, was consistent with attempted incest and a fortiori in my view is consistent with attempted incest upon the test as I have stated it.

There was, of course, further evidence in this case which was generally supportive of the complainant’s evidence and against that of the appellant, namely admissions, which the appellant made of demonstrations of sexual intercourse to the child, although it was never quite clear from those admissions how much involvement of the child there was in those occasions and it does seem likely, I should say, that those occasions were different from the occasions in respect of which the child complains.

In all the circumstances, I would conclude that the jury’s verdict was not unsafe or unsatisfactory in the administration of justice and I would dismiss the appeal.

McPHERSON JA:  I agree.  I have nothing to add.

DERRINGTON J:  I agree.

DAVIES JA:  The appeal is dismissed.