R v Allen (a pseudonym) - [2020] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allen (a pseudonym) [2020] QCA 233

PARTIES:

R
v
ALLEN (a pseudonym)
(appellant)

FILE NO/S:

CA No 122 of 2020
DC No 165 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 June 2020 (Dearden DCJ)

DELIVERED ON:

27 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2020

JUDGES:

Sofronoff P and Morrison JA and Jackson J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant submits that the verdict was unreasonable having regard to the evidence (ground 1) – whether the verdict of the learned trial judge was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant gave a sworn denial at trial – where the appellant submits that the learned trial judge did not give adequate reasons for rejecting the appellant’s evidence (ground 3) – where the appellant submits that the learned judge misdirected himself in finding that the complainant’s evidence was “capable of being accepted beyond a reasonable doubt” (ground 5) – where the appellant submits that, as an alternative to ground 5, the learned trial judge failed to give adequate reasons for finding that the complainant was a reliable witness having regard to her answer that she didn’t “know if [the offending] happened or not” (ground 6) – whether the learned trial judge’s directions were capable of being misdirections

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allen (a pseudonym)

Details

AGLC: R v Allen (a pseudonym) [2020] QCA 233
Case: [2020] QCA 233
Decision Date: 27 October 2020

CaseChat Overview and Summary

The appellant, Allen, was found guilty by a judge alone of three counts of unlawful and indecent treatment of a child under 12 years of age. The complainant, a five and a half year old child, reported the incidents to her grandmother immediately after they occurred. The child's evidence was given under section 93A of the Evidence Act 1977 (Qld), and she was cross-examined under section 21AK of the same Act 16 months later. Allen appealed his conviction, submitting that the verdict was unreasonable or insupportable having regard to the evidence, that the trial judge misdirected himself in finding that the complainant’s evidence was capable of being accepted beyond a reasonable doubt, and that the judge failed to give adequate reasons for rejecting Allen’s evidence.

The court considered the appeal and the various grounds submitted by Allen. The court held that Allen's submission that the verdict was unreasonable or insupportable was without merit, as the trial judge had carefully considered the evidence and provided adequate reasons for his findings. The court also found that the trial judge's directions were not misdirections and that the judge had appropriately assessed the complainant's evidence and concluded that it was reliable and capable of being accepted beyond a reasonable doubt. Furthermore, the court held that the complainant's evidence was properly admitted under section 93A of the Evidence Act and that there was no unfairness to Allen in the trial process despite his inability to cross-examine the complainant.

The appeal was dismissed, and the court confirmed the original verdict of the trial judge. The trial judge's assessment of the evidence and his reasons for finding Allen guilty were upheld, and the court found that the evidence was sufficient to support the verdict. The court also found that the statutory process designed to protect the complainant was appropriately applied and that there was no miscarriage of justice in the trial.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is a statutory recognition of this familiar aspect of the law of evidence. Section 102 provides:“102 Weight to be attached to evidenceIn estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—(a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.” Section 102 applies to Part 6 of the Evidence Act in which s 93A appears. Consequently, under both the common law of evidence and pursuant to s 102 of the Evidence Act, the criticisms of the complainant’s evidence may well have an effect upon the probative effect of that evidence. It does not touch its admissibility. The appellant’s complaint about his inability to cross-examine raises a different issue. In substance, the appellant’s submission is that the trial process was unfair because the appellant was unable to test the critical evidence. That submission must be rejected for there was no such inability and, even if the complainant’s answers in cross-examination could be construed as obstructing the appellant’s ability to test her evidence, there was no unfairness. Section 103 of the Act provides, inter alia, that s 93A shall be construed as in aid of any other provision of the Act and so s 93A, which concerns the admissibility of statements made by children, and Division 4A of Part 2 of the Act, which deals with evidence given by affected children, are complementary to each other. There are several purposes evident in these provisions. One of them, of course, is the purpose of limiting a child’s exposure to the stresses and trauma of the legal process.[3] However, another important object of s 21AK, which the statute itself states to be an express object, is to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence.[4] That integrity is ensured by the combination of the admissibility of the statement admitted under s 93A and the amelioration of the stresses inherent in the experience of giving evidence which is afforded by Division 4A of Part 2.[3]See s 21AA(b).[4]Section 21AA(a). The statutory process is not designed just to make the child comfortable for the child’s sake, although that is one of the objects. The larger purpose is to increase the likelihood that the child’s evidence is accurate. This is done by ensuring that the initial questioning is not only done in a setting that reduces stress, a condition that does not enhance reliability, but also that it is done by police officers who have received training in how to question children in a way that is calculated to reduce the risk of inaccurate or false accounts. One of the most obvious features of that aspect of the process is the care taken by trained interviewers to avoid leading questions. There are other features which frequent readers of transcripts of such interviews notice, such as the use of extremely open questions.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Allen (a pseudonym) [2020] QCA 233
PARTIES:	R v ALLEN (a pseudonym) (appellant)
FILE NO/S:	CA No 122 of 2020 DC No 165 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 17 June 2020 (Dearden DCJ)
DELIVERED ON:	27 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	8 September 2020
JUDGES:	Sofronoff P and Morrison JA and Jackson J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant submits that the verdict was unreasonable having regard to the evidence (ground 1) – whether the verdict of the learned trial judge was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of three counts of unlawful and indecent treatment of a child under 12 years after a judge alone trial – where the appellant is the complainant’s uncle – where the complainant child was five and a half years old at the time of the offending – where the complainant child made an immediate complaint to her grandmother after the offending occurred – where the complainant child’s evidence was made pursuant to s 93A of the Evidence Act 1977 (Qld) – where the complainant child was cross-examined at a hearing under s 21AK of the Evidence Act 16 months later – where the appellant gave a sworn denial at trial – where the appellant submits that the learned trial judge did not give adequate reasons for rejecting the appellant’s evidence (ground 3) – where the appellant submits that the learned judge misdirected himself in finding that the complainant’s evidence was “capable of being accepted beyond a reasonable doubt” (ground 5) – where the appellant submits that, as an alternative to ground 5, the learned trial judge failed to give adequate reasons for finding that the complainant was a reliable witness having regard to her answer that she didn’t “know if [the offending] happened or not” (ground 6) – whether the learned trial judge’s directions were capable of being misdirections CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE –…