R v BDH

Case [2019] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDH [2019] QCA 47

PARTIES:

R
v
BDH
(appellant)

FILE NO/S:

CA No 9 of 2018
DC No 460 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 13 December 2017 (Lynham DCJ)

DELIVERED ON:

22 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2018

JUDGES:

Fraser and Morrison JJA and Mullins J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where the appellant contended on appeal that his barrister was incompetent – where he felt that his barrister would not let him give evidence – where he contended his barrister failed to bring particular evidence before the jury – whether the appellant’s barrister did not represent him in the way that he wished

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contended that the complainant’s cross-examination by defence counsel gave rise to a miscarriage of justice – where the fact that the plaintiff lied from time to time was established at trial – where it was submitted by the appellant that the cross-examination effectively promoted the complainant as a witness of credit and resulted in an unfair trial for the appellant – where defence counsel did not suggest there was a possibility of collusion with the complainant’s friend who had made a similar complaint – whether the conduct of the trial by the appellant’s barrister was incompetent and in particular the cross-examination of the complainant gave rise to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where all counts concerned the nearly nine year old daughter of the appellant’s de facto partner – where the complainant admitted to lying – where there were many contradictions in her accounts – where there was no DNA evidence in support of the allegations – where her account was contradicted by her mother – whether the convictions are unsafe and unsatisfactory having regard to the whole of the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v DBB [2013] 1 Qd R 188; [2012] QCA 96, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

S Hamlyn-Harris for the appellant
The appellant also appeared on his own behalf

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Details
AGLC
R v BDH [2019] QCA 47
Case
[2019] QCA 47
Decision Date

CaseChat Overview and Summary

The appellant was convicted of six offences: indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6). These offences were related to the nearly nine-year-old daughter of the appellant’s de facto partner. The appellant appealed against his conviction, raising several grounds, including that his defence counsel was incompetent, that the complainant's cross-examination led to a miscarriage of justice, and that the convictions were unreasonable or unsatisfactory having regard to the evidence. The court was required to determine whether the appellant's defence counsel was incompetent, whether the cross-examination of the complainant resulted in a miscarriage of justice, and whether the convictions were unsafe and unsatisfactory in light of the entire evidence.

The court found that ground 3, concerning the appellant's dissatisfaction with his defence counsel, lacked merit. The court examined the evidence and noted that the complainant admitted to lying and that there were many contradictions in her accounts. Additionally, there was no DNA evidence to support the allegations, and her account was contradicted by her mother. The court concluded that the convictions were safe and satisfactory. The court found that the cross-examination of the complainant did not unfairly promote her as a credible witness, given that her propensity to lie was already established at trial. The court held that the appellant's dissatisfaction with his defence counsel did not amount to incompetence, and the cross-examination did not result in a miscarriage of justice.

The appeal was dismissed, and all grounds of appeal were found to lack merit. The convictions stood as determined by the lower court.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Counts 1-3 were alleged to have occurred on Monday, 5 September 2016, and counts 4-6 were alleged to have occurred on the next Thursday, 8 September 2016. Particulars of the counts were given:[3](a)count 1 (indecent treatment): the appellant used his hand or hands to touch the complainant’s bottom, skin on skin;(b)count 2 (indecent treatment): the defendant used his hand or hands to touch the complainant’s vagina, skin on skin;(c)count 3 (rape): the appellant inserted his finger or fingers into the vulva or vagina of the complainant;(d)count 4 (indecent treatment): the appellant used his hand or hands to touch the complainant’s bottom, skin on skin;(e)count 5 (indecent treatment): the appellant used his hand or hands to touch the complainant’s vagina, skin on skin; and(f)count 6 (rape): the defendant inserted his finger or fingers into the vulva or vagina of the complainant.[3]Appeal Book (AB) 180-182.Some background At the time of the offences the appellant was 37 years old. The complainant was the daughter of his girlfriend. That relationship had been on and off for about 18 months. The complainant was one month short of nine years old at the time. The girlfriend’s house had a shed in which some of the appellant’s possessions had been stored. Notwithstanding the relationship, the appellant did not fulfil the role of step-father in relation to the complainant; discipline was left to the complainant’s mother and the appellant was known to the complainant simply by his Christian name.The evidence at trial The grounds of appeal necessitate that this Court must examine the whole of the evidence. In what follows the evidence will be dealt with sequentially, and the cross-examination of the complainant will receive particular attention when ground 2 is considered.Evidence of the complainant The complainant was interviewed twice, the first on 8 September 2016 and second on 25 October 2017. At the first interview the complainant was nearly nine and at the second she was just on 10 years old.First s 93A interview The complainant told police that she was speaking to them because the appellant had been “touching my rude part”[4] and “looking at it”.[5] She said that that had occurred on the Monday of that week.[6] She went to the shed when she woke up and the appellant was there. She described what happened:[7]“… a couple of hours I was sitting on him he stuck his hand in my nickers and started touching my vagina … And morning she [sic] done it and I said have forgotten something. And he said what? … Cause he had forgot cause I’m pretty sure mum told him … not to touch my rude part … Cause he does forget stuff … He kept on doing it”.[4]AB 185.[5]AB 185.[6]The interview was on Thursday, 8 September, and therefore the Monday immediately preceding that.[7]AB 186. Shortly after that she responded to a question asking her to tell everything that happened on the Monday:[8]“On Monday I went to the shed and I sat on him and then a couple of hours later he stuck his finger in my rude part and I tell him to stop and then he want, and then he want to look at my vagina to see if there is hair on it and then he wants to look on my butt.”[8]AB 187.

Evidence

Evidence Before The Court

The grounds of appeal necessitate that this Court must examine the whole of the evidence. In what follows the evidence will be dealt with sequentially, and the cross-examination of the complainant will receive particular attention when ground 2 is considered.Evidence of the complainant The complainant was interviewed twice, the first on 8 September 2016 and second on 25 October 2017. At the first interview the complainant was nearly nine and at the second she was just on 10 years old.First s 93A interview The complainant told police that she was speaking to them because the appellant had been “touching my rude part”[4] and “looking at it”.[5] She said that that had occurred on the Monday of that week.[6] She went to the shed when she woke up and the appellant was there. She described what happened:[7]“… a couple of hours I was sitting on him he stuck his hand in my nickers and started touching my vagina … And morning she [sic] done it and I said have forgotten something. And he said what? … Cause he had forgot cause I’m pretty sure mum told him … not to touch my rude part … Cause he does forget stuff … He kept on doing it”.[4]AB 185.[5]AB 185.[6]The interview was on Thursday, 8 September, and therefore the Monday immediately preceding that.[7]AB 186. Shortly after that she responded to a question asking her to tell everything that happened on the Monday:[8]“On Monday I went to the shed and I sat on him and then a couple of hours later he stuck his finger in my rude part and I tell him to stop and then he want, and then he want to look at my vagina to see if there is hair on it and then he wants to look on my butt.”[8]AB 187. The complainant said that the events occurred at around 6.00 am, and she was wearing her pyjamas at the time. She described the pyjamas in the interview. She also described features of the shed. She said the appellant was sitting in his chair and having a cigarette. She gave a further description of the events in these terms:[9]“… [H]e made me like turn me around and laid me back and pulled down my pants and had a look at my butt. … [T]hen he pulled down my pants … And then he started looking at my butt. … He told me he was having a dream … And then he started laughing … And then I looked at the time … And I said [the appellant’s name] its seven before … and he said okay … and I’m sure you get ready for school.[describing what happened when the appellant looked at her bottom] [S]o he was opening it up and seeing if the hairs grown in it yet … [the appellant said] That you’ve got a couple of hairs and that I was trying to said [sic] it don’t touch it cause my vagina cause it tickles … Cause your hands are cold … [H]e was looking at my vagina too and seeing if there was hair on it too and he said I think he said that there’s only three there … And then, he looked at my arm pits to see if there was hair under it … And there’s only white hairs under it.”[9]AB 190-193.

Decision

Reasons for decision

Ground 3 lacks merit.Conclusion and orders As all grounds lack merit, the appeal should be dismissed. MULLINS J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

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