R v CBR

[2016] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBR [2016] QCA 161

PARTIES:

R
v
CBR
(appellant)

FILE NO/S:

CA No 249 of 2015
DC No 386 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 8 October 2015

DELIVERED ON:

17 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2016

JUDGES:

Margaret McMurdo P and Philippides JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – where the appellant was convicted of one count of maintaining a sexual relationship with a child (count 1), and three counts of indecent treatment of a child under 16 (counts 4, 5, 6) – where the appellant was acquitted of one count of wilfully exposing a child under 16 to an indecent image (count 2) and four counts of indecent treatment of a child under 16 (counts 3, 7, 8 and 9) – whether the guilty verdicts on counts 1, 4, 5 and 6 were inconsistent with the not guilty verdicts on counts 3, 7, 8 and 9

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of maintaining a sexual relationship with a child (count 1), and three counts of indecent treatment of a child under 16 (counts 4, 5, 6) – where the appellant was acquitted of one count of wilfully exposing a child under 16 to an indecent image (count 2) and four counts of indecent treatment of a child under 16 (counts 3, 7 , 8 and 9) – whether the jury’s verdicts on counts 1, 4, 5 and 6 were unreasonable on the whole of the evidence

Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Thornton (1989) 89 Cr App R 54, cited
R v Wood [1997] Crim LR 229, cited
Stevenson v The Queen [2000] WASCA 222, approved

COUNSEL:

J A Fraser for the appellant
S J Farnden for the respondent

SOLICITORS:

Howden Saggers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  I agree with Dalton J’s reasons for dismissing this appeal against conviction.

2. PHILIPPIDES JA:  I agree that the appeal should be dismissed for the reasons given by Dalton J.

3. DALTON J:  This is an appeal against conviction.  There were nine counts before the jury.  The jury returned a guilty verdict on four counts and a not guilty verdict on five counts.  The first ground of appeal is that the verdicts are inconsistent and logically irreconcilable such that the verdicts of guilty ought to be set aside.

4. The Crown case was that the complainant, together with her parents and younger brother, would routinely visit the home of her maternal grandmother on Wednesday nights to have dinner.  At the time in question the complainant was five or six, and her brother was one or two.  The defendant, the complainant’s uncle, lived at home with his mother.  After dinner the family would play cards at the dining table or watch television.  Sometimes the complainant would be invited into her uncle’s bedroom.  He had a computer and television in his bedroom and, in particular, allowed the complainant to watch The Simpsons on television; she was not permitted to watch that show at home.

5. The complainant said that sometimes when she was in his bedroom, the defendant would sexually assault her.

6. Count 1 on the indictment was a count of maintaining a sexual relationship with a child and was dependent upon the jury coming to a verdict of guilty in relation to some of the other counts.  A guilty verdict was returned on this count, apparently on the basis of the guilty verdicts on Counts 4, 5 and 6.  Count 4 involved the defendant touching the complainant’s genitals through her shorts.  Counts 5 and 6 involved the defendant’s penetrating the complainant’s vagina with a finger or fingers.

7. The complainant made no complaint of anything untoward at the time of the offending.  Nor did any other person notice anything untoward at the time of the offending.  These circumstances applied equally to all the offending alleged by the Crown.  However, when she was 18, the complainant told her family doctor that she had been sexually abused when she was a child.  She told him that the circumstances were that every Wednesday night her family would attend her grandmother’s home for dinner and that her uncle, the defendant, would get her into his room to watch The Simpsons because she was not allowed to watch The Simpsons at home.  She told the doctor that the defendant had penetrated her vagina with his fingers.  At about the same time, the complainant told her mother that her uncle had sexually abused her in childhood and, in answer to her mother’s questions, that he had not raped her, but had used his fingers.

8. These complaints were consistent with what was alleged at Counts 4, 5 and 6 of the indictment.  In contrast, what was alleged at Counts 3, 7, 8 and 9 of the indictment was that the defendant had used the cap from a stubbie of beer to indecently assault the complainant and that on two occasions he had procured her to rub her hands on his penis.  There was no evidence that the complainant had made complaints of these matters to her family doctor, her mother, or anyone else.

9. In a case where the jury was correctly warned that it would be dangerous to convict on the complainant’s testimony alone unless the jury was satisfied beyond reasonable of its truth and accuracy, the consistency between the facts which formed the basis of Counts 4, 5 and 6, and the complaints to the mother and family doctor, may well have convinced the jury beyond reasonable doubt that the defendant was guilty of those charges.  They may not have disbelieved the complainant in relation to the other counts, but may not have been convinced beyond reasonable doubt.  It is significant that in giving redirections to the jury about the complainant’s evidence, very soon after giving the warning to be satisfied beyond reasonable doubt of the truth and accuracy of her evidence, the trial judge said, about the evidence of other witnesses, “Some of it is arguably supportive of what she said about some of the counts about digital penetration, but it does not do much in respect of the other counts …”.  It seems to me that the verdicts of the jury were logically reconcilable and indicate that the jury was concerned to find some objective support for the complainant’s evidence in her complaints to the family doctor and her mother.

10. I will note that counsel for the appellant conceded that the verdict of not guilty on Count 2 could not be used in support of this first ground of appeal.  That count was quite different from the others.  It was one of wilfully exposing the complainant to an indecent image.  The circumstances were that, while in the defendant’s bedroom, the complainant herself opened a web browser and caused an indecent image to be displayed on the screen of the defendant’s computer.  The Crown case was that the defendant then invited the complainant to examine and discuss the image.  Notwithstanding this, it might be thought that the jury had a reasonable doubt as to whether or not the defendant wilfully exposed the complainant to the image when she herself, accidentally, caused it to be displayed.  That the jury dealt with this charge somewhat independently from the others is indicated by the fact that, having deliberated for a relatively short time, they informed the Court that they had reached a verdict on one count (which turned out to be Count 2) and could not reach a verdict on the other counts.

11. The second ground of appeal was that the jury’s verdict was unreasonable on the whole of the evidence.  The relevant law is set out in M v The Queen:

    “… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.”[1]

    [1](1994) 181 CLR 487, 493 (citations omitted).

12. The evidence was that the grandmother’s house was relatively small, and that the bedroom of the defendant was adjacent to the dining room, and relatively close to the lounge-room.  There was corroboration for the fact that the complainant would visit the defendant’s bedroom after dinner, in particular to watch The Simpsons on television.  As noted, there was no evidence that the complainant made any contemporary complaint; in fact she continued to visit the defendant in his bedroom.  The evidence was that if there had been any loud noise in the defendant’s bedroom that would have been heard in the dining room and lounge-room.  However, the complainant’s evidence was that only on one occasion did she cry out, and then she said, “I cried out a little bit, because it hurt”.  Even if such a cry was heard by the adults in the dining or lounge-room, by itself, it would not give cause either for alarm or investigation – a single cry such as that was perfectly consistent with normal child’s play.  Further, the complainant was very young at the time of the indecent dealing, so that the jury may not have attached particular significance to the fact that she did not complain at the time, and did not stop visiting the defendant’s bedroom.  While the complainant’s evidence was that she felt uncomfortable and did not like the indecent dealing, the jury may well have concluded that she was not sufficiently comprehending of the significance of the defendant’s conduct to behave any differently than she did.

13. As well as the complaints made to the complainant’s mother and family doctor (above), there was evidence from a young man who had been the complainant’s friend and flatmate.  He gave evidence that she had once told him that she had been raped by her uncle as a 12 year old.  He gave no detail of the conversation and was barely cross‑examined.  The complainant accepted that she had a conversation with this flatmate about the abuse, but said she could not remember telling him that she had been raped as a 12 year old.  She said she did not believe she could have said that, for she was not raped by the defendant when she was 12.  The appellant put much store on this complaint for it was said it must have damaged the complainant’s credibility.  Whether it did or not was a matter for the jury.  The evidence was brief, and the jury may well have discounted it having regard to the fact that a miscommunication about the matter might well have occurred due to embarrassment on the part either of the complainant, or the flatmate, or both of them.  In that regard, the complainant’s mother’s evidence was that she questioned the complainant to extract precise details when the complainant first disclosed the interference to her.  Further, the clear import of the family doctor’s evidence was that he did not receive all the details of the interference in one conversation, but that they emerged over time.  No doubt the flatmate’s evidence was something the jury would have carefully considered, but it was not something which necessarily meant that they would reject the complainant’s evidence.

14. Similarly, the complainant’s girlfriend gave evidence that the complainant had told her she had been raped by an uncle when a small child.  She was asked for details of that allegation and replied: “Penetration, watching movies of carnal, ill repute, and general touching”.  This witness was not cross-examined.  It was for the jury to determine whether or not her evidence supported the complainant’s credit or otherwise.

15. As noted above, in the absence of any evidence which corroborated the complainant’s account, the jury was appropriately warned about her evidence.  From what it is possible to gather from the written transcript, the complainant gave evidence in a precise, detailed, straightforward and responsive way.  In my view there was sufficient evidence before the jury for it to bring in the verdicts which it did.

16. In my view the appeal should be dismissed.

17. I will add something about the procedure adopted when the jury returned with a verdict on one count, and were undecided as to the others.  There was no criticism made of the course adopted by the trial judge, and I make none.  However, when this situation recently arose before me in the trial division, I was somewhat surprised to find little authority on the practice which ought to be adopted.  In that case there were six counsel at the bar table, including some who were very experienced, and only one of them had ever experienced a similar situation.  I note in the present case that the prosecutor had no experience of such a situation and was unable to assist the trial judge as to the correct procedure; counsel for the defendant referred to Archbold: Criminal Pleading, Evidence and Practice.

18. Having researched the matter after my own recent experience, it appears that in such circumstances the trial judge has a discretion whether or not to: (1) take the verdict upon which the jury are agreed and then administer a Black direction, so that the jury continue to consider the other counts, or (2) refuse to take the verdict at that stage, but ask the jury to continue to deliberate – Stevenson v The Queen.[2]  The discretion must be a wide one having regard to the nature of the charges upon which the jury is deliberating, and the other circumstances of the case.  As to the width of the discretion the West Australian Court of Appeal said in Stevenson, “This Court would intervene only if it is shown that the procedure followed, on the facts of the particular case, would lead to a miscarriage of justice.”

    [2][2000] WASCA 222, [19], where the first alternative course was taken. See also R v Thornton (1989) 89 Cr App R 54, and R v Wood [1997] Crim LR 229, where the first alternative was described without criticism by the English Court of Appeal.

19. In Hawi v R[3] the trial was conducted on the basis that the judge was prepared to take verdicts on some counts but not others, but was not prepared to do so where that involved taking a verdict on a lesser alternative charge where the jury could not agree on the more serious charge.  There was no criticism of this approach in the New South Wales Court of Appeal.

    [3][2014] NSWCCA 83.

20. Interestingly enough, in Hawi, the New South Wales Court of Appeal found that the trial judge was correct not to disclose to counsel detail of the jury’s note to the judge about which counts, against which defendants, were agreed.[4]  Price J said that it would have been inappropriate for the judge to convey the specifics of the jury’s deliberations for:

    [4]See [451]ff.

    “Until the jury delivered its verdicts, its members were entitled to change their mind on any of the charges and were not bound by the information provided to the trial Judge.  His Honour’s summary to counsel that included unanimous decisions being reached in the case of some accused in relation to the alternative charge, but not in respect of a primary charge and vice versa … was all that he needed to convey for counsel to make submissions both in relation to proposed directions and the discharge of the jury.”[5]

    [5]See Price J at [460] and McCallum J at [473].