SUPREME COURT OF QUEENSLAND
CITATION:
R v CCD [2018] QCA 187
PARTIES:
R
v
CCD
(appellant)FILE NO/S:
CA No 77 of 2017
DC No 186 of 2017DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Southport – Date of Conviction: 12 April 2017 (Muir DCJ)
DELIVERED ON:
10 August 2018
DELIVERED AT:
Brisbane
HEARING DATE:
20 September 2017
JUDGES:
Fraser and Morrison JJA and Mullins J
ORDER:
Dismiss the appeal.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury found the appellant not guilty of count 1 rape but guilty of its natural alternative of indecent treatment of a child under 16 years – where the jury found the appellant not guilty of count 2 indecent treatment of a child under 16 years, with the circumstance of aggravation that the child was under 12 years – where the jury was discharged without reaching a verdict on count 3 indecent treatment with the same circumstance of aggravation – whether the differing verdicts of the jury could be reconciled – whether the guilty verdict was impermissibly inconsistent and unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE AND INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant argued that there were significant inconsistencies in the complainant’s evidence, and between the complainant’s evidence and the preliminary complaint evidence – where the complainant changed her evidence at the pre-recording about how many times this conduct had occurred – where the complainant’s mother and the mother’s friend claimed that the complainant had denied there was any penetration – where the complainant did not tell her teacher or an employee at her school about counts 2 and 3 – whether the inconsistencies in the evidence made the guilty verdict on count 1 unreasonable
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v Clapham[2017] QCA 99, appliedCOUNSEL:
S Bain for the appellant
J A Wooldridge for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: The appellant was charged with three sexual offences against the complainant. On count 1 (rape), the jury found the appellant not guilty of rape but guilty of indecent treatment of a child under 16 years. On count 2 (indecent treatment of a child under 16 years, with the circumstance of aggravation that the child was under 12 years), the jury found the appellant not guilty. On count 3 (indecent treatment with the same circumstance of aggravation), the jury were discharged without reaching a verdict.
The appellant has appealed against his conviction upon the grounds that the verdicts of the jury are inconsistent and that the guilty verdict is unreasonable and not supported by the evidence.
The Crown case
The complainant was aged between 10 and 11 during the period charged as the time within which the offences occurred. The complainant gave two video…
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- AGLC
- R v CCD [2018] QCA 187
- Case
- [2018] QCA 187
- Decision Date
CaseChat Overview and Summary
The court noted that the inconsistencies in the evidence did not necessarily render the guilty verdict unreasonable. The complainant's evidence was frank and showed that she wished the appellant to remain part of her family life. The jury could consider that as supporting rather than detracting from her credit. The inconsistency between the complainant's evidence and her mother's friend's evidence about the content of the complaint did not necessarily detract from the force of her evidence that the appellant had indecently assaulted her. The jury could have reasonably decided that the evidence about the content of the complaint should be accepted, in preference to the evidence of the complainant. The court held that the jury's verdict was not inconsistent or unreasonable.
The court dismissed the appeal and affirmed the conviction on count 1. The court held that the evidence as a whole was sufficient to support the guilty verdict on count 1. The inconsistencies in the evidence did not necessarily detract from the force of the complainant's evidence, and the jury could have reasonably decided that the evidence about the content of the complaint should be accepted, in preference to the evidence of the complainant. The court held that the jury's verdict was not inconsistent or unreasonable.
Orders
Orders of the court
Dismiss the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellant argued that the most significant inconsistency in the complainant’s evidence was that, although she made it clear in her evidence that the appellant penetrated her vagina with his fingers and she said that she told her mother and her mother’s friend about the penetration, they gave evidence that when the complainant was asked specifically about penetration she had made it clear that the appellant only used his palm and not his fingers. The appellant argued that the complainant’s evidence about penetration was very specific, and she referred to having been hurt when the appellant’s fingers went inside her. The appellant also relied upon the inconsistency between the complainant’s evidence that the appellant did not have pubic hair or testicles and her mother’s evidence to the contrary; and the apparent inconsistency between the complainant’s evidence that her step-father replaced the batteries in the vibrator and her mother’s evidence that there were no batteries in the vibrator when she found it after the event. The complainant’s acceptance in cross examination that her evidence that the appellant replaced the batteries was simply incorrect was characterised as a significant shift in her evidence made to correct what she must have known by the time of cross examination were mistakes in her original evidence.Consideration It is apparent from the complainant’s evidence that, notwithstanding the conduct of the appellant of which she complained and about which she said she was uncomfortable, she wished him to remain part of her family life. She gave that evidence very frankly. The jury could regard that as supporting rather than detracting from her credit. It did not necessarily detract from the force of her evidence that she happily participated in a family weekend with the appellant after the complainant had made her disclosure. The significance of a point of that kind is pre-eminently for a jury to consider. The inconsistency between the complainant’s evidence and the evidence of her class teacher about whether the complainant said that the appellant had struck her in the face did not concern the sexual offence of which the appellant was convicted. It was a matter capable of bearing upon the complainant’s credibility but it did not require the jury to harbour any doubt about the complainant’s evidence that the appellant had indecently assaulted her. The appellant emphasised the inconsistency between the complainant’s evidence that she complained to her mother and her mother’s friend about digital penetration and their evidence that she did not make such a complaint. That point deserved the jury’s consideration. In relation to this and some other points made by the appellant, however, it must be borne in mind that the complainant gave her evidence about one year after she made those complaints. That is a very significant period of time in the life of a girl as young as the complainant was at the time. Whether the evidence about the content of the complaint given by the complainant’s mother and mother’s friend should be accepted, in preference to the evidence of the complainant, was a matter for the jury. If the evidence of the complainant’s mother and mother’s friend resulted in the jury doubting the complainant’s evidence that she had complained to them that the appellant had digitally penetrated her vagina, the jury, acting reasonably, could regard that as an innocent mistake by the complainant attributable to the passage of time and her young age. Further, if the jury considered that the complainant denied to her mother and her mother’s friend that the appellant digitally penetrated her, the jury were not bound to conclude that the complainant’s evidence of that conduct was not true. In that respect the jury could accept and take into account the complainant’s young age and her evidence to the effect that she was conflicted: she wanted the appellant to remain part of the family but she also wanted him to stop his sexual abuse of her. The jury might nonetheless have reasonably decided that the evidence as a whole was insufficiently compelling to find the appellant guilty beyond reasonable doubt of the offence of rape. Accordingly, whilst the evidence given by the complainant’s mother and the mother’s friend about the topic provides a logical explanation for the jury’s decision to acquit upon the charge of rape, it does not follow that it necessarily should have generated a doubt in the jury’s mind that the appellant was guilty of indecent treatment in the course of the massage.