CRIMINAL LAW - PARTICULAR OFFENCES - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - indecent dealing and maintaining an unlawful sexual relationship**
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - PARTICULAR OFFENCES - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - indecent dealing and maintaining an unlawful sexual relationship**
Judgment (3 paragraphs)
[1]
MCMURDO P: I agree with Chesterman J for the reasons given by him that the verdict is not unsafe and unsatisfactory.
As to the prosecution's focus on the appellant's inability to provide a motive for the complainant's making and persisting in false accusations, I agree with what has been said both by Thomas JA and Chesterman J. I agree that that error may have deprived the appellant of a significant possibility of acquittal and the convictions should subsequently be set aside.
Although this would ordinarily result in a retrial, this case is rightly described as a finely balanced one; there have already been two trials, one leading to a disagreement and one to a successful appeal; the appellant has served a substantial term of imprisonment in respect of these offences and is elderly and in poor health; the history of this case must also have taken its toll on the complainant and her family and friends. I am finally persuaded that the interests of justice would not be served by ordering a retrial. I agree with the orders proposed by Thomas JA and Chesterman J.
[2]
THOMAS JA: This is an appeal against convictions upon five counts of indecent dealing and one count of maintaining an unlawful sexual relationship.
[3]
Only three witnesses gave evidence in the trial - two for the Crown and one for the defence. The Crown case consisted of evidence from the complainant and the complainant's mother (who is the ex-wife of the appellant). At the time of trial the complainant was 16 years old. Her evidence concerned alleged incidents in 1993-1994 when she was aged 11-12. Her mother was at time of trial a woman in her forties and the appellant a 65 year old man.
The complainant gave evidence of four (or arguably five) incidents alleged to have occurred at an address at Wynnum in 1993 and of one incident alleged to have occurred at Holland Park in 1994. The mother's evidence was mainly concerned with the dates when the respective parties lived at the relevant addresses and of her movements and those of the appellant. She did not claim to have observed any conduct or attitude on the part of the appellant towards her daughter that caused her any concern. She also described her relationship with the appellant, including her marriage to and divorce from him. The appellant gave evidence confirming his presence in relevant households at various times and denied that any sexual impropriety in relation to the complainant had ever occurred.
There was no corroboration. A jar of cream or a soap substitute which had been left behind at the household when the appellant went to Melbourne was produced as an exhibit as the complainant had alleged that he had rubbed such cream on her. However the exhibit was entirely neutral. There was no medical evidence. Indeed the allegations were not such as to make medical evidence relevant, as they were confined to allegations of external touching with a hand or penis.
Evidence was adduced, principally by cross-examination by defence counsel, that the relationship between the appellant and the complainant's mother ended in February 1994, with some resentment on her part concerning his acquisition of a house and failure to make her a part owner. The evidence suggests that the appellant had been of considerable help to the complainant's mother, having married her in Greece and assisted in bringing her to Australia and assisting her financially and in other ways from time to time. However their relationship was difficult to follow, largely because of the poor quality of the evidence and the difficulty of reconciling various disjointed statements that are not clearly in sequence or fixed in point of time. A number of tensions arose between the appellant and the complainant's mother at relevant times. These included the consequences of his advancing money to her to enable her to buy a car. After she had made seven repayments of $50 somebody put sugar in the petrol tank and she blamed the appellant for the incident and made no further repayments. In November 1993 the appellant threatened to sue her for the outstanding money, and as already mentioned, they separated in February 1994 not long after his acquisition of a house at Holland Park. The last offence was alleged to have occurred during an overnight stay by the complainant in this house. Such an incident, if true, must have occurred not long before the separation.
In April 1997 the complainant's mother told the appellant that the complainant had stolen a big amount of money from a friend. The mother says that the conversation with the appellant was unpleasant and that he reminded her that she owed him money for the car. Subsequently she formed the opinion that the appellant was spreading stories about her. In January 1998 she and the complainant went to the police and the complainant made her allegations.
The complainant admitted stealing money from a man named Z, who was one of the men with whom the complainant's mother had relationships after she and the appellant had separated. The complainant removed money from his wallet on numerous occasions. Some time after being confronted by Mr Z about her thefts, the complainant told him that the appellant had molested her. This would seem to have been in late 1997 and to have been the first occasion when any allegation of a sexual nature was raised against the appellant. As Chesterman J has pointed out, this seems to have succeeded in mollifying Mr Z to some extent. The complainant said that subsequently he "blurted out" her allegation in front of her mother and two other people on New Year's eve and her mother subsequently took her to the police.