R v W [2000] QCA 321

Alan Taylor & Associates for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: The appellant was charged with having on five occasions unlawfully and indecently dealt with a female child and having on a sixth occasion attempted to do so. He was convicted, after a trial, on the first three counts mentioned in the indictment and acquitted on the last three. Mr Glynn SC, for the appellant, does not press the ground taken in the notice of appeal, that the verdicts on counts 1, 2 and 3 are inconsistent with the verdicts on counts 4 and 5 (count 6 being the attempt), but says that against the background of the evidence the acquittals on counts 4, 5 and 6 show that the verdicts reached in relation to counts 1, 2 and 3 were unsafe.

[2] As we understand the contention, it is that the evidence relating to counts 4, 5 and 6 advanced on behalf of the appellant threw such a cloud of doubt over the accuracy of the complainant's version of events that the verdicts on counts 1, 2 and 3 could not safely be let stand. Counts 1, 2 and 3, on each of which the verdict was guilty, alleged the occurrence of each of the offences during a period of a little over a year (counts 1 and 2) and about two years (count 3). The latest date given in the indictment, with respect to counts 1, 2 and 3, is 31 December 1985. The other three counts, 4, 5 and 6, were also alleged to have occurred during periods of time, rather than at a particular date; the period was about two years for count 4, beginning in 1988 and about six weeks for counts 5 and 6, beginning on 15 December 1989. It will be noted that there is a gap of about two years between the last date mentioned with respect to the first three counts and the first date mentioned with respect to the last three.

[3] Mr Glynn argues, and it appears to us to be correct, that on the evidence the offences charged in counts 4, 5 and 6 must have occurred, if at all, in a house which the appellant, who is a grandfather of the complainant, built near the Gold Coast. The argument is that credible evidence showed that the appellant did not occupy that house until well after the last date (29 February 1990) alleged with respect to the second batch of three offences.

[4] The complainant was born on 26 November 1977 and so must have been 12 years old at the time when the offences alleged in counts 5 and 6 were committed. She made her statement to the police about these allegations in mid-1999 when she was 21 years of age and it is not incredible that she might, although honest, have been confused about the dates of the offences alleged in counts 4, 5 and 6. But the other possibility is, of course, that the evidence she gave about the occasions on which the offences in counts 4, 5 and 6 were committed shows her to be so unreliable that none of the guilty verdicts can stand.

[5] The foundation of the appellant's attack is a letter which is mentioned and has its contents described in the evidence, but which was not tendered. The evidence shows that the letter is dated 16 January 1991, that it is from the Beaudesert Shire Council and it gives the dates of "various stages of the building process" of the house. It is said in the letter, one gathers, that the foundations of the house were passed by the Council inspector in September 1988, the drainage in August 1988 and the slab in October 1988; then there was a final inspection on 8 January 1991. The appellant gave evidence that the house was finished about December 1990, but he did not move in until January 1991. If that was so, then one could not safely find that the offences alleged in counts 4, 5 and 6 were committed, if they were committed at all, during the periods alleged in the indictment. That is so because the latest date given in the indictment is 29 February 1990 and the appellant says that he did not move into the house until nearly a year later.

[6] The critical point is the assertion that the appellant did not move in until after final inspection. There is no indication in the letter, it may safely be inferred, as to whether the house was occupied at the time of final inspection. Further, the evidence of the appellant that completion of the house did not occur until more than two years after the inspection of the slab, in October 1988, is not one whose plausibility is manifest.

[7] In our opinion, if the jury acquitted on counts 4, 5 and 6 because of the content of the letter, they might have done so despite being doubtful about the appellant's evidence as to the long delay in completion of the house. It could be that they were inclined to think that the events said to constitute counts 4, 5 and 6 occurred, but probably somewhat later than the dates alleged.

[8] Mr Glynn has relied, in connection with the safety of the three guilty verdicts, on an improbability said to attach to count 5, namely that the offence was supposed to have been committed during a Monopoly game with other persons present, none of whom apparently noticed what was happening. But even adding this to the argument about the date of completion of the house in which the offences constituted by counts 4, 5 and 6 were said to have been committed, one does not necessarily reach a state of doubt with respect to the verdicts under counts 1, 2 and 3. As to those counts, the case was essentially word against word and a reading of the evidence does not bring to light any troubling improbabilities, except perhaps on one point. This is that the complainant gave evidence that she experienced what was described as an "orgasm" as a reaction to sexual interference by the appellant. If one takes the word "orgasm" quite literally, this must seem in view of her then age unlikely; but the jury could reasonably have understood it to mean simply a sensation of sexual pleasure.

[9] The proper view appears to be that accepting that there were reasons to have doubts about the accuracy of the dates given with respect to counts 4, 5 and 6, there is no sound basis upon which to hold that the other verdicts are vitiated as being ones which were not open to the jury on the evidence.

[10] It follows that the appeal against conviction must fail.

[11] Although no point was taken about the judge's directions, it should be mentioned that evidence was given of uncharged offences said to have been committed by the appellant in relation to the same complainant. The judge explained the relevance of that evidence as being -

"... simply background material which provides a setting in which you will consider the charges and the evidence that relates to the charges".

[12] A direction in this form has High Court authority against it: Gipp [1998] HCA 21; (1998) 194 CLR 106 at [176]. It should be noted, however, that in other jurisdictions the High Court's reasons in Gipp have been treated with some reserve. Callaway JA in Loguancio [2000] VSCA 33, suggested that Gipp is "hard to apply correctly" and that counsel "would be well advised to steer clear of it". In Fraser [1998] NSWSC 286, the New South Wales Court of Criminal Appeal said that the decision has no clear ratio; see also Ipp J in Kailis [1999] WASCA 29 at [202] et seq.

[13] The appellant, who has no prior criminal history, was sentenced to 12 months imprisonment. He is aged 69 years. In the scale of seriousness of the offences in question, what was done was not at the higher end. As to count 1, the complainant said that the appellant, when she was about 5 or 6, rubbed his finger on her vagina "on top and also underneath". As to count 2, which occurred almost immediately after count 1, the complainant said that the appellant, while the two of them and other family members were in a bed, rubbed her in the area of her vagina both inside and outside her pants. The last count which resulted in a conviction, number 3, was of a similar character.

[14] A difficulty in the case is that although there is a victim impact statement which ascribed quite serious consequences to the appellant's treatment of the complainant, the statement does not discriminate between the three offences of which he was convicted and the other occasions, alleged to be frequent, when similar things were done; since there were no convictions as to the latter, they must be ignored for the purpose of sentence. One is therefore left with three occasions of rubbing in the vaginal area, with no suggestion of penetration. The prosecutor remarked below that the conduct in question "is at the lower end of the scale compared to other things the court sees"; that appears to be accurate. The appellant is, so far as the record shows, a man of exemplary character apart from the occurrence of these three offences. He has had a long working life as a technical teacher which was, on the evidence, highly useful. He is elderly. Despite these circumstances, it does not appear to us that the judge could be said to have been in error in imposing a period of actual custody. But, particularly as one cannot entirely discount the possibility that the appellant could serve all or a substantial part of the 12 months, the conclusion at which we have arrived is that the sentence should be altered. In reaching this conclusion we accept that, as Mr Glynn submitted, the fact that no recurrence of this bad behaviour has, it appears, occurred during the long period of years since the offences were committed shows a low likelihood of reoffending.

[15] We would reduce the sentence, in the circumstances, to 6 months imprisonment, suspended after 2 months, the operational period being 2 years.

(2) Application for leave to appeal against sentence granted; appeal allowed. Set aside sentences imposed below and replace by a sentence of 6 months imprisonment on each of the three counts, suspended after 2 months, with an operational period of 2 years.