Ferry v The Queen [2003] WASCA 207

Ferry v The Queen [2003] WASCA 207 - WASCA 2003 case summary — Zoe

[56]

24 I would assume that counsel's decision not to go any further than he did to impeach the complainant's truthfulness, attack her character and explore the post incident relationship between the applicant and the complainant was deliberate. Counsel was entitled to take the view that there was enough evidence before the jury upon which they could form an unfavourable view of the complainant's credibility and character. He was entitled to judge that to labour the issue in cross-examination of this young girl might have seemed like harassment and might have risked an adverse reaction from the jury. As to the matter of the complainant continuing to work for the applicant it is of course notorious that a child who has been subjected to sexual abuse might decide to maintain the relationship in which the abuse occurred without complaining and without giving any outward appearance of anything being amiss. It is the main reason why, so often, offences of this kind remain undetected for a long time. In this case the evidence was that the complainant made her first complaint about the incident two days after it had occurred and it is understandable that counsel should decide in his client's best interests that lengthy cross-examination focusing upon weaknesses in the complainant's character and her emotional difficulties and focusing upon the reasons why she carried on working with the applicant for another week might have been ineffective if not counter-productive. That the applicant should take the view in hindsight that this was a mistake is no ground to quash his conviction. It is not every tactical decision which, considered in hindsight to have been misjudged, opens the door to a ground of challenge to the jury's verdict. Tactical decisions made concerning whether certain lines of cross-examination should or should not be pursued which in the light of the verdict may seem to have been unwise cannot of themselves be relied on to found a proposition that the defendant has not had a fair trial. Such decisions have to be made in every case and the making of them is an exercise of the right to a fair trial: R v Ratten [1974] VicRp 26; [1974] VR 201 at 214; R v Suresh [1998] HCA 23; (1998) 102 A Crim R 18.

[60]

"Where were you positioned when you gave [the complainant] that massage?---I was directly behind [the complainant] at the computer desk. She was sitting on higher sort of stool than one of the standard ones. It was a built-up sort of a stool level with the computer. She was sitting on that. I was directly behind her, standing behind her whilst giving this rub, and leaving over the top.

Now, you heard some evidence from [the complainant] on the videotape that she said you were sitting behind her and you reached around and put your hands under her shirt and lifted her sports bra and fondled her breast with your hands?---Yeah, I heard that.

Okay, and what do you say to that?---Well, that's nowhere near correct.

Did anything like that occur?---Yes, something like that did occur.

Can you explain to the members of the jury exactly what occurred in that computer room?---Right. When we was in the computer room she got a massage and at the moment she's on the computer playing some really good games, and I finished her massage then I pulled up a seat behind her and was watching the computer games and she came across a really good computer game. It was a King Kong sort of one where you had to collect lots of bananas. I hadn't seen this game before so I wanted to have a go at it, so I choofed [the complainant] off this stool, I hopped on and I started playing it because it was a really good looking game. I'm playing there with my left hand with the computer here, [the complainant] was right here beside me. She has moved in - physical girl, which doesn't worry me, doesn't affect me. She come right up on me. My arm was around her. I was giving her a cuddle, it was like on her belly and it was cold. That was cold, she knows, because it was me cold hand on her bare skin on her belly. She was wearing two T-shirts and a sort of a boob-tube tank top. I know she had two T-shirts because that's where I was when I was rubbing her. Halfway through the computer game - I knew what [the complainant] was up to because she has tried things like this before. Halfway through King Kong she dropped down. I felt her go down and my hand was already on her skin. I went for a grab. I got a grab all right and it was a handful of tit, it wasn't a handful of rib or body where I thought I would, and if she had shown her mother that night there would have been a bruise on it. It was a grab. It was a dead-set, right-on grab.

And why did you do that?---Because that's where my hand was at the time and it was a grab. It was a pinch. It was to let her know that she had gone just a little bit too far that time.

What were you thinking at the time that you did that?---At the time I done that I thought this - 'You have blown it this time, kid,' you know. I spat the dummy just after that and it wasn't long after that that the mother was wandering down, but I had already had it by then and I was leaving. I was very pissed off with [the complainant] for actually trying it in her house where everyone was, because her sister was in and out, her mother was in and out. I had no idea what this kid was thinking of, but she did get - I did get a handful of tit, but it wasn't a grope, it was a grab, it was a pinch.

So what was your intention in the grab or the pinch?---I let her know that she had stepped over the boundary. She was - gone well beyond where she should have been. I didn't mind giving her a cuddle, I didn't mind giving her a punch, you know."

[133]

76 It is trite that sentences should not be disproportionate to the criminality involved in the offending conduct. The main matters that are to be weighed in judging the level of criminality involved in this offence would seem to be the following. The applicant was aged 45 years. He was in a position of trust with respect to the complainant arising out of the trust placed in him by the complainant's mother to be a guiding influence and arising from his standing as the complainant's employer. The offence was committed in breach of that trust. The complainant was of the age of 12 and the applicant knew that she was going through a difficult if not dysfunctional period in her growing up. It was this that had prompted the mother to ask for his assistance. On his own evidence he observed that her sexuality was developing and that she lacked the capacity to deal with that. The applicant's own evidence is that the complainant's behaviour was sexually precocious and that she displayed a rather unusual level of interest in sexual matters. To any right thinking person of the age and maturity of the applicant it must have been obvious that the complainant was in need of guidance and support. The complainant was vulnerable in other respects too in her psychological makeup. The applicant knew of these problems also: that the complainant was given to morbid thinking, fantasy and thoughts of self-harm. Instead of providing guidance, support and direction there was evidence that the applicant often engaged in inappropriate conversations with the complainant about sex and sexual matters personal to the complainant. He said these conversations were always started by her. She says they were always started by him. However that may be it is difficult to resist the inference, on the whole of the evidence, that the offence in question was but the culmination of at least some preparatory groundwork on the applicant's part and was not simply a momentary aberration. The applicant has not shown any remorse or contrition. There has never been any acceptance of guilt, which is the first step to rehabilitation.

[140]

83 In the case of Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994 a sentence of 1 year each was handed down with respect to two incidents of indecent dealing by a 34 year old man of a 17 year old girl firstly on a train and later at a railway terminal. Once of these offences involved the offender rubbing his face against the face and lips and neck of the complainant and the other involved fondling her breasts over her clothes. In the case of R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995 there were three offences of indecent dealing of a girl aged 14 years. One of these offences involve rubbing the complainant's inner thigh and another involved feeling her breasts over her clothing "for a couple of minutes". The sentencing Judge imposed fines of $1,500 in relation to each of the offences. A Crown appeal against the inadequacy of the sentences was dismissed. In the case of Goodvinn v The Queen, unreported; CCA SCt of WA; Library No 950358; 2 June 1995 the offender was sentenced to 18 months' imprisonment for indecent dealing involving fondling the penis of a male child aged about 6. In the case of Wright v The Queen, unreported; CCA SCt of WA; Library No 920060; 3 February 1992 two concurrent sentences of 10 months' imprisonment were imposed on a 28 year old man of comparatively good record for indecently dealing with an intellectually handicapped woman of approximately the same age by fondling her breasts. In the case of Marria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996 a sentence of 9 months' imprisonment on a 60 year old male for indecent dealing of a 15 year old girl by briefly touching her breasts over her clothing was set aside and a fine of $3,500 was substituted. In the case of Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996 a man in his late fifties with a good record was fined $10,000 for a single offence of indecent dealing of his step-daughter aged 13 by placing his hands underneath her clothes and touching her bare breasts. In the case of Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082, 4 March 1997 concurrent sentences of 12 months' imprisonment were imposed on a school teacher for offences of indecent dealing one of which involved touching the breast of an 8 year old child over her underclothing.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (150 paragraphs)

Ferry v The Queen [2003] WASCA 207 (3 September 2003)

"(a) The learned prosecutor made an error by introducing inadmissible evidence (1) spent New South Wales convictions; (2) reversing the onus of proof; (3) inappropriate, irrelevant and prejudicial line of questioning."

Disproportionate emphasis on previous convictions

Reversal of onus of proof - prosecutor submitting complainant had no motive to lie

"(b) The learned defence made an error by not presenting all the facts (1) the last week complainant worked for me; (2) complainant's tendency to exaggerate and make false statements."

"(c) The learned trial Judge made an error by misdirecting the jury in his summing up (1) misdirected the jury when he said both versions of events were indecent dealings; (2) not bring the jury attention to prosecutor's deliberate attempts of misinformation."

Withdrawal of issue of indecent dealing from jury

Disclosure to jury that material edited from record of interview

Disclosure to jury of uncharged "allegations"

Inadequate protection of applicant by his counsel

Secret tape recording wrongly admitted into evidence

Unfairness due to manner of receiving complainant's evidence

Omission of evidence that complainant had "exposed" herself to applicant

Jury getting only "a quarter of the picture" through edited video of complainant's evidence

Disclosure that there had been a previous trial

"(c) The jury erred by (unfairly using the fact that I had lied to the police to assist its verdict)"

"(f) The learned trial Judge made an error by (not directing the jury to return a not guilty verdict due to inconsistencies in the complainant's testimony)."

Application for leave to appeal against sentence

Parties

Legislation Cited (1)

Cases Cited (12)