R v App

Case [2021] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v APP [2021] QCA 162

PARTIES:

R
v
APP
(appellant)

FILE NO/S:

CA No 249 of 2020
DC No 285 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Conviction: 22 October 2020 (Dearden DCJ)

DELIVERED ON:

10 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2021

JUDGES:

Morrison and Bond JJA and Callaghan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted after a judge-alone trial in the Childrens Court of Queensland of two counts of indecent treatment of a child under 12 years – where the complainant gave pre-recorded evidence pursuant to s 21AK of the Evidence Act 1977 (Qld) – whether there was a miscarriage of justice because the learned trial judge erred in not directing himself in accordance with section 21AW(2) of the Evidence Act 1977 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted after a judge-alone trial in the Childrens Court of Queensland of two counts of indecent treatment of a child under 12 years – where the appellant was aged 16 years at the time of the offence – where the appellant touched the complainant on and in her vagina – where forensic analysis of the complainant’s underwear revealed a mixed DNA profile being greater than 100 billion times more likely to have occurred if the appellant had contributed rather than if he had not – whether there was a miscarriage of justice because the learned trial judge erred by placing too much weight upon the DNA evidence and by disregarding the alternate hypothesis of “DNA transference”

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a judge-alone trial in the Childrens Court of Queensland of two counts of indecent treatment of a child under 12 years – where the appellant touched the complainant on and in her vagina – where the complainant gave inconsistent versions as to where the sexual touching first occurred – where preliminary complaint evidence was recorded – whether the verdicts were unreasonable and cannot be supported having regard to the whole of the evidence

Criminal Code (Qld), s 615B
Evidence Act 1977 (Qld), s 21AK, s 21AW(2), s 93A

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, considered
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v Harris[2021] QCA 96, cited
R v Miller[2021] QCA 126, considered
R v Sun[2018] QCA 24, cited
SKA v The Queen (2011) 243 CLR 400;

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Details
AGLC
R v APP [2021] QCA 162
Case
[2021] QCA 162
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, who had been convicted by a judge alone in the Children's Court of Queensland of two counts of indecent treatment of a child under 12 years. The key issues for the court were whether there was a miscarriage of justice due to the trial judge's failure to direct himself in accordance with section 21AW(2) of the Evidence Act 1977 (Qld), whether the trial judge erred by placing too much weight on the DNA evidence and disregarding the alternate hypothesis of "DNA transference," and whether the verdicts were unreasonable and could not be supported by the evidence.

The court found that although the DNA evidence was powerful, the trial judge did not misdirect himself on its significance. The judge did not err by failing to instruct the jury about the routine nature of the complainant's pre-recorded evidence and the probative value of such evidence, as required by section 21AW(2) of the Evidence Act 1977 (Qld). The court held that the omission did not affect the possibility of the appellant being acquitted, and thus, the proviso did not apply. Additionally, the court found that the trial judge did not place too much weight on the DNA evidence or disregard the hypothesis of DNA transference.

The court concluded that the verdicts were not unreasonable or unsupported by the evidence, given the complainant's testimony and other corroborating evidence. The appeal was dismissed, and the convictions were upheld.

Appeal dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The facts set out in paragraphs [1] to [10] above were unchallenged. What took place in the bed was disputed.Evidence of COM COM gave evidence by way of a recorded police interview admitted under s 93A of the Evidence Act, and pre-recorded oral evidence admitted under s 21AK of that Act. The essential parts of that evidence in so far as it concerned the alleged offences were as follows:(a)she was there to speak to police because APP had “Touched me in rude places”;[1] she explained that to mean he “started touching me in my vagina”;[2][1]AB 108 line 57.[2]AB 109 line 34.(b)COM was in the lounge room first;[3][3]AB 110 line 33; AB 113 line 56 – AB 114 line 5; AB 117 lines 20-23; AB 164 lines 1-4.(c)she had taken a nightie and underwear with her as they were to sleep over; her clothes (and those of SIS) were in a bag;[4][4]AB 159 line 37 – AB 160 line 9.(d)she had a shower with SIS and they changed in the bathroom;[5] her mother was still there at that time;[6][5]AB 160 line 35 – AB 161 line 15.[6]AB 161 line 26; AB 162 line 21; AB 163 line 18.(e)she was wearing an Elsa nightie[7] and underwear;[8][7]AB 119 line 44.[8]AB 119 lines 46-48.(f)she was watching a Barbie movie on APP’s phone;[9][9]AB 117 lines 39-51; AB 164 line 6.(g)when they were in the lounge room APP went outside for a smoke, and she went too because she was scared by BRO’s story of the house being haunted; because she was cold APP gave her his jumper; later he said to take it off as she would stretch it;[10][10]AB 138 line 55 – AB 139 line 24.(h)APP was wearing long pants, socks and a jacket;[11][11]AB 120 lines 3-38.(i)the phone went flat so they moved to BRO’s room where there was a charger;[12][12]AB 109 lines 19-20; AB 117 line 41; AB 118 lines 9-39; AB 164 lines 1-4 and 32-42.(j)they were in BRO’s bed[13] which was a mattress on the floor;[14][13]AB 109 line 19; AB 118 line 12.[14]AB 115 line 32; AB 117 line 8.(k)COM watched a Barbie movie on Netflix on the phone on BRO’s bed;[15][15]AB 119 lines 19-30; AB 164 line 8.(l)the appellant was “hugging” her;[16][16]AB 121 lines 24-38.(m)APP was snuggling close and touching her bum, inside her underwear;[17][17]AB 146 lines 18-32.(n)APP put his hand over her waist and was “squishing” her bum;[18](o)then APP stopped squishing her bum and put his hand inside her underwear;[19](p)he touched her on her skin;[20] she described it as: “he … touched me in my vagina. And then he touched me in my bum”;[21] he “squished my vagina as well”, which felt “ticklish” and “weird”;[22] she later described it as touching with his fingers and that he was “touching it, but being soft with it”;[23](q)she was “really scared” and “like frozen”;[24] she pretended to be asleep;[25](r)she went to the toilet;[26] APP “put his hand away really fast”;[27](s)she then got back into the same bed,[28] because she thought if she did not get back into that bed APP “would get mad at me and realise”;[29] he continued “touching me in my vagina ... And … in my bum as well”;[30](t)she went to the toilet a second time;[31] at that time she had his jumper on;[32](u)she tried to wake BRO up but could not; she went back to bed and pulled the sheet or blanket over her;[33](v)she tried to put his jumper over her; she “got ... it at the end and tried to put it over me”;[34] she “grabbed the end and pulled it, because it was big … I pulled it all over me … And was … in a ball”;[35] she tried to put it over her legs to prevent being touched; APP said not to do that because it would stretch the jumper,[36] so she took it off;[37] and(w)she told her mother in the morning when they were in the car going home; she said she had been touched by APP in the bum and vagina.[38][18]AB 122 lines 7-59.[19]AB 123 lines 44-58; AB 124 lines 3-10; AB 132 line 54; AB 143 lines 41-43; AB 146 line 28.[20]AB 156 lines 19-21.[21]AB 119 line 20.[22]AB 123 line 39 to AB 124 line 30.[23]AB 131 lines 24-28, AB 133 lines 5-29.[24]AB 123 line 7.[25]AB 124 lines 53-57.[26]AB 126-127.[27]AB 125 line 37; AB 126 lines 6-12.[28]AB 128 line 20.[29]AB 128 lines 24-33. The explanation of this, in context, was that he would realise she knew what he was doing: AB 128 lines 30-34.[30]AB 109 lines 31-50; AB 130 lines 53-56.[31]AB 134 lines 19-23; AB 136.[32]AB 137 lines 1-4.[33]AB 137 line 40 – AB 138 line 18; AB 166 lines 24-29.[34]AB 124 lines 45-60.[35]AB 138 lines 33-41.[36]AB 124 lines 41-54; AB 137 line 3; AB 138 lines 33-53; AB 165 lines 26-33.[37]AB 138 lines 45-53; AB 139 lines 20-28.[38]AB 141-143.

Decision

Reasons for decision

In my view, this ground of appeal must be rejected.Conclusion I propose the following order:1.Appeal dismissed. BOND JA: I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour. CALLAGHAN J: I have had the benefit of reading a draft judgment prepared by Morrison JA and gratefully adopt his Honour’s summary of the facts and circumstances. I agree with most of that which has been written by his Honour, although I do not agree that counsel’s omission specifically to put to the complainant that the appellant did not touch her bottom was significant. The issues were clearly delineated by the way in which counsel ran the case, no unfairness was caused by his questioning and no inference can be drawn from that omission. I do agree with his Honour’s conclusions in respect of each ground of appeal and that the appeal must be dismissed. The circumstances that are summarised by his Honour between paragraphs [48] and [50] and between paragraphs [68] – [73] combine to compel the conclusion that Ground 3 (unreasonable verdict) cannot succeed. As to the argument made under the heading of Ground 2 it is true that the possibility of DNA transference provided an explanation for the presence of the appellant’s DNA on the complainant’s underwear. However, the significance of this issue is necessarily confined by the way in which the evidence was left after cross examination of the expert. Perhaps knowing that it was as much as he could get, counsel was content to leave the issue on the basis that transference was “a possibility”. Without more, and given the uncontradicted evidence of the complainant and her mother, it was only by a process of speculation that it was open to contemplate the possibility of transference. It is true that it was not possible, on the evidence, to say with certainty whether the DNA had been found on the inside or the outside of the complainant’s underpants, but this was not a case which proof as to the manner in which the appellant’s DNA came to be on the complainant’s clothing was “an indispensable intermediary step in the jury’s reasoning to an inference of guilt”[91]. This evidence did not, by itself, have to prove the presence of the appellant’s hand inside the complainant’s underpants. The evidence was led only to support the complainant’s evidence. As such, it tended to confirm her account. His Honour did not misdirect himself as to its significance, so Ground 2 must be dismissed.[91]Director of Public Prosecutions v TAL [2019] QCA 279 at [63]. There was, as Morrison JA’s judgment reflects, some substance in Ground 1, which was astutely identified and skilfully argued by counsel appearing on a pro bono basis. I agree with Morrison JA’s conclusion that it must be dismissed, but I wish to add some further observations which support my conclusion that it is open to apply the proviso in the circumstances of this case. Consideration of the proviso’s application “begins from identifying the error that was made at trial”.[92] That error is identified as the omission to instruct the jury in accordance with section 21AW of the Evidence Act. This was an error of law.[93] It was not, in the circumstances, an error that could have affected the possibility that the appellant might be acquitted.[92]Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [30].[93]Fleming v The Queen (1998) 197 CLR 250 at [39].

Ratio Decidendi

Legal Principle Established

It was contended that this case did not suffer from a lack of corroboration of the complainant’s evidence, that being a singular reason for refusing to apply the proviso.[63] In fact, it was said, there was powerful corroboration from the DNA evidence, and the preliminary complaint evidence supported the acceptance of the credibility and reliability of the complainant’s evidence. Therefore, this was an appropriate case to do so.[64][63]R v WAT [2013] QCA 251, [23].[64]Citing R v Horvath [2013] QCA 196; R v RAQ [2014] QCA 261; R v WAT [2013] QCA 251.Consideration Section 21AW of the Evidence Act provides as follows:“21AW Instructions to be given to jury(1)This section applies to a proceeding on indictment if any of the following measures is taken—(a)an affected child's evidence is taken in a way provided for under subdivision 3 or 4;(b)a person is excluded under section 21AU while an affected child gives evidence or the evidence of an affected child is presented;(c) an affected child has a support person under section 21AV while the child gives evidence.(2)The judicial officer presiding at the proceeding must instruct the jury that—(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant's guilt from it; and(b)the probative value of the evidence is not increased or decreased because of the measure; and(c)the evidence is not to be given any greater or lesser weight because of the measure.” A judge only trial is governed by s 615B of the Criminal Code which relevantly provides:“615B LAW AND PROCEDURE TO BE APPLIED(1)In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.(2)In a trial by a judge sitting without a jury, the judge may view a place or thing.(3)If an Act or the common law—(a)requires information or a warning or instruction to be given to the jury in particular circumstances; or(b)prohibits a warning from being given to a jury in particular circumstances;the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.” Section 615B(3) is an analogue of s 33(3) of the Criminal Procedure Act1986 (NSW) considered in Fleming v The Queen.[65] That section provided:“33 Verdict of single Judge (1)A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.(2)A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.(3)If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”[65](1998) 197 CLR 250, [1998] HCA 68, [23].