Walmsley v B

[1992] QCA 292

IN THE COURT OF APPEAL  [1992] QCA 292

QUEENSLAND

C.A. No. 102 of 1992

Before the Court of Appeal

The President

Mr. Justice Pincus

Mr. Justice Thomas

RONALD DAVID WALMSLEY

v.

B

(Appellant)

JUDGMENT OF THE COURT

Delivered the Third day of September 1992

MINUTE OF ORDER:        Appeal allowed.  Conviction quashed.  Order that there be no new trial.

CATCHWORDS:                 Criminal Law. Verdicts - Unsafe and Unsatisfactory. Applicant convicted of unlawful and aggravated assault on 6 year old girl - whether Magistrate erred in allowing complainant's mother to sit with her during evidence - Whether complainant's demeanour after incident equally consistent with applicant's version - whether applicant's version - whether corroborative.

Counsel:Michael James Byrne for the appellant

Michael John Byrne for the respondent

Solicitors:Connolly Suthers, Townsville, for the appellant

Director of Prosecutions for the respondent

Hearing Date:  11 August, 1992

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 102 of 1992

RONALD DAVID WALMSLEY

v.

B

(Appellant)

JUDGMENT OF THE COURT

Delivered the Third day of September 1992

The appellant has appealed against his conviction on 28 January 1992 in the Magistrates Court at Charters Towers of an offence of unlawful and aggravated assault.  There are four grounds of appeal which, shortly stated, are that:

(a)the decision of the Magistrate was against the weight of the evidence;

(b)the Magistrate erred in law in holding that the evidence of the mother of the complainant child was corroborative of her evidence;

(c)the Magistrate erred in permitting the complainant's mother to sit with the complainant when she gave evidence, thereby prejudicing the appellant; and

(d)the decision is in all the circumstances unsafe and should not be allowed to stand.

The offence allegedly occurred on the night of 13 October 1991.  The complainant was a six year old girl.  The appellant was a twenty-five year old man with stunted growth and a degree of immaturity and intellectual disability as a result of a congenital abnormality of his kidneys.  There was a birthday party at the local gun club at which the complainant was present, and the appellant was acting as a barman.  Both the appellant and the complainant went outside the club premises shortly before midnight.  The complainant's mother gave evidence that, when she noticed that the complainant was absent, she walked to the front of the building, from where she saw her daughter approaching from the back of the building, "walking a couple of yards behind" the appellant.  She said:

"She looked very very pale, very serious, and she was chewing her finger. And I scooped her up and said, `Oh, where have you gone, I'd though I'd lost you', and I went and sat down with her, and she was shaking."

The complainant, gave evidence that the appellant "took me out to the carpark and scared me."  When asked what the appellant had done that scared her, the complainant said:

"He took me to the end of the carpark and he laid me down and put one leg over me and I pushed myself up and he told me to get back down and then I pushed myself back up and told him that I wanted to go to mum and he took me over to mum and I had a very pale face."

When asked to repeat the later part of her answer she said:

"And I had a very pale face. Scared looking."

When she was later asked how she knew that she had a pale face when she went back to her mother, the complainant said:

"Because after I told her she said I had a very pale face."

The appellant gave evidence.  He said that he went outside to urinate on a number of occasions on the night in question, and that he went out again at about midnight and urinated in the car park.  As he was walking back, he saw the complainant standing by herself.  As he walked past her, he asked her what she was doing and she answered "nothing".  When asked what he did then, he said:

"Then I grabbed her on this shoulder here and turned her around then, I said, `go back inside to your Mum', and grabbed her and turned her around and shoved her and said, `go back in to your Mum' and thats all."

Later, when asked whether he said anything else to her in the car park, he said:

"Yeah, before I grabbed her shoulder, I said, `You shouldn't talk to strangers' and I think that scared her a bit. Because I am used to talking to Alex's kids pretty rough."

According to the appellant's evidence, he has an older brother named Alex.

There was a fundamental conflict of evidence between the complainant and the appellant concerning what occurred when they were outside the building.  For the appellant, it was submitted that the complainant's evidence should be regarded as unreliable because of her tender years and susceptibility to suggestion from adults, especially her mother.  There was evidence that the incident had been discussed on more than one occasion prior to the trial.

Mention was also made of other matters which it was submitted could be discerned from the transcript; for example, it was asserted that the complainant's version of the incident was expressed in adult phraseology whereas collateral matters "were either unlearned, confused, incorrect or in child's language".  It is sufficient to say that these additional matters raised on behalf of the appellant were not made out.

It was also submitted for the appellant that the complainant's evidence possessed internal inconsistencies.  For example, under cross-examination, after the complainant said that she was scared, she was asked what she did then, and she said:

"Well I pushed myself back up and said, `I want to go to mum' and then he put one hand on my chest and said, `No, no, lie down', and so ...

He put his hand on your chest ? - - Yes.  He pushed me down slowly and then I pushed back up harder than his hand and I said, `I want to go to mum', so he said, `Alright' and then he said `First of all you got to find your drink'.

First of all you've got to ? - - Find your drink.  So he feels around with his hand and I felt around there quickly because I wanted to go to mum and when we found the drink I picked it up and ran to mum and he walked slowly behind me.

So you're still in the carpark ? -- Yes, but I was walking back to the gun club where mum was at the door.

And you were running in front of him ? -- Yes

And he was behind you ? -- Yes".

It was contended that these answers were inconsistent with the complainant's evidence in chief, quoted above.

Reference was also made to the complainant's evidence that she was taken outside by the appellant.  Initially she said that the appellant walked ahead and said "Come on", and that she went because she wanted to see what he was taking her to.  She said: "I followed to him and then when I got closer to him he held my hand and he led me to the carpark."  The Court's attention was drawn to a number of other passages in the transcript in which the same matter was discussed by the complainant and it was said that there were inconsistencies.  The most that can be said by way of criticism of the complainant's evidence on this matter is that she later said that she initially remained inside for a short time and only followed the appellant when he called and "was waving his hand for me to come out."  That aside, her answers to a number of similar questions on the subject are quite consistent.

In examination in chief, the complainant said that the appellant took her beyond her family's car to where other cars were parked and that there was no one else there.  It was submitted for the appellant that that is inconsistent with the following passage in the complainants' cross-examination:

"X were you standing about in the carpark by yourself at all ? -- Well, only him and me and people were going out to the toilets or some people were coming in.

But you were standing around in the carpark by yourself ? -- Yes and him ahead of me.

And he sort of - he went ahead of you didn't he ? -- Yes".

Although other suggested inconsistencies in the complainant's evidence were raised, none merit specific attention other than the following questions and answers from her cross-examination:

"He asked you to lie down ? -- Yes

And you did lie down ? -- Yes

Why did you do that ? -- Because I was scared if I didn't I don't know what would happen to me.

Could you have run away ? -- I could but I really wanted to see what he would do."

Before moving from the complainant's evidence, it is convenient to deal with the ground of appeal which asserts that the magistrate erred in permitting the complainant's mother to sit with the complainant when she gave evidence, thereby prejudicing the appellant.  The solicitor who represented the appellant before the Magistrates Court said that he considered that he was not given an adequate opportunity to object to the magistrate's decision to allow the complainant's mother to sit with the complainant and that he "felt particularly constrained" in his cross-examination of the complainant because of her mother's presence.  According to the solicitor, "towards the end of my cross-examination I decided that I would have to put to X the suggestion that she was lying, and ... I felt I could not do so as forcefully as I might otherwise have done because of the mother's presence."

These contentions are totally without substance.  There is not the slightest basis for concluding that the appellant's solicitor could not have effectively communicated any objections or concerns to the magistrate or that, had he chosen to do so, the magistrate would not have properly considered and ruled upon them.  Further, a perusal of the cross-examination of the complainant gives no indication that she was not fully cross-examined.  The belated attempt to rely upon matters which formed no part of the proceedings below by reference to the solicitor's recall of his uncommunicated concerns and feelings provides no additional basis for interfering with the magistrate's decision.

Before this Court, it was also submitted that the evidence of the appellant should have been preferred and, in addition to the criticisms made of the complainant's evidence, it was asserted that the evidence of her mother was internally inconsistent and also inconsistent with the evidence of the complainant and with the evidence of the appellant.  Numerous inconsistencies were alleged, but the evidence of the complainant's mother was substantially confined to peripheral issues and most (at least) of the points made concern incidental details or differences of expression which have no particular relevance.

To the extent that there may be any substance for present purposes in criticisms aimed at the evidence of the complainant's mother, it arises from the approach taken by the magistrate with respect to the question of corroboration.

The magistrate's reasons for his decision were delivered orally, immediately following the evidence and submissions and, not surprisingly, are not expressed as coherently and accurately as a reserved judgment might have been.  However, the tenor and intent of what was said is quite clear.

The magistrate first considered the evidence of the complainant's mother, whom he described as "the only corroborator" of the complainant.  Although he recognised that there were aspects of her evidence which were probably inaccurate, he found that this "cast no doubt upon her credibility".  While it "would not be of any surprise ... that the memory of incidents in October of last year would not be totally accurate and there was always room for some error", he considered that "all of the witnesses appeared to have a reasonable recollection of what went on", and was satisfied that the complainant's mother's "recollection was reasonably clear and that she attempted honestly to give as accurately as possible that recollection."  Later, he stated that the matter primarily available for the purpose of corroboration was distress noticed by the complainant's mother, especially having regard to the proximity of the complainant and the appellant as they returned "walking out of the dark into the lighted area".

The magistrate also formed a favourable view of the evidence of the complainant, whom he considered truthful although unsworn and "sufficiently intelligent to give reliable evidence", an "initial evaluation ... supported by the manner in which she gave her evidence".

On the other hand, he was unfavourably impressed by the appellant.  He said:

"... certainly my view of the demeanour of all of the witnesses and the evaluations which I have already made and the conflicts in evidence to which I have referred lead me to have serious doubt as to the evidence of the defendant.  I am in doubt as to those aspects of evidence where there is conflict between the evidence of [the complainant's mother] and himself and where there is conflict between the evidence of the defendant and [the complainant].

Where that conflict exists of course - and as I have already specifically ruled, I accept the evidence of [the complainant's mother] as being honestly and openly given and there is no doubt in my mind as to her credit then I - where that evidence of the defendant is in conflict, then of course I reject the evidence of the defendant.

... The defendant's evidence, as I have already indicated, conflicts in some major particulars with the evidence of [the complainant's mother] and of [the complainant] and I accept their evidence in relation to those matters.

On all of the evidence I am satisfied that there is corroboration sufficient from those conflicts in the evidence which I find cast doubt upon the credit of the defendant.  From the distressed condition as viewed by [the complainant's mother] at the time her daughter returned.  The fact that she saw her daughter in close proximity to the defendant shortly before she noticed those signs of distress. ...

I am satisfied that that is sufficient corroboration for the purposes as required.  I find that the evidence of [the complainant] is credible and acceptable and with that corroboration I accept her evidence as being the evidence of the true state of affairs on that evening.  I accept that the incidents as related by her did in fact occur."

Subject to one matter, there is little of substance to be said against the approach adopted by the magistrate.  Whether or not his reason for doing so was correct, he considered that he should not convict unless the complainant's evidence was corroborated.  That was certainly prudent, if not essential.  The complainant was very young, and some time had elapsed between the incident and the hearing during which what had occurred had been the subject of considerable family discussion.  It was important to be satisfied beyond reasonable doubt that the complainant's account of events was not influenced, even subconsciously, by those discussions.

The magistrate seems to have held that the complainant's visible distress when returning from the darkened area of the carpark in proximity to the appellant not only provided corroboration for her description of what had occurred but also diminished the credibility of the appellant.  In the circumstances, that was not so.  While the matters relied upon may in other circumstances have been capable of amounting to corroboration, they were not inconsistent with the appellant's version of what had occurred.  Importantly, the complainant's mother gave evidence that the condition of the complainant which she observed when the complainant returned in the company of the appellant was the type of reaction she tended to reveal when "... she had done something wrong or was going to get into trouble."  The signs which were observed might have meant no more than that the complainant was apprehensive because, without permission, she had left the building and wandered into the carpark where she had been spoken to brusquely by the appellant.  These signs were as consistent with the appellant's evidence as with the complainant's, and could not properly be used as a basis for preferring the complainant's version.

The magistrate relied also upon other factors, such as demeanour, for preferring the evidence of the complainant to the evidence of the appellant.  However, it is impossible to be satisfied that he would have formed a similar view had he been aware that the vitally important evidence of the complainant's mother, that is, her observations concerning the complainant's distress when she returned, did not lend particular support to the evidence of the complainant where it conflicted with the appellant on the critical events alleged to constitute the offence.

In the circumstances, the risk of a miscarriage of justice is sufficiently high to make it appropriate for this court to quash the conviction.

The appellant was placed on probation for a period of eighteen months from 9 March 1992, the date when sentence was passed.  The appeal record included both a psychiatric report and a pre-sentence report from the Queensland Corrective Services Commission prepared between the date of conviction and the date of sentencing.  It appears that the appellant has no criminal record and there is no suggestion of a need for long term psychological or psychiatric counselling.  A further hearing would involve the complainant and her family in additional trauma.  In all the circumstances, there should be no re-trial.

The appeal is allowed and the conviction quashed.  It is ordered that there be no re-trial.

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 102 of 1992

RONALD DAVID WALMSLEY

v.

B

(Appellant)

The President

Mr Justice Pincus

Mr Justice Thomas

Judgment of the Court delivered on the Third day of September, 1992

APPEAL ALLOWED.  CONVICTION QUASHED.  ORDER THAT THERE BE NO NEW TRIAL.