R v CCG

Case [2018] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCG [2018] QCA 361

PARTIES:

R
v
CCG
(appellant/applicant)

FILE NO/S:

CA No 118 of 2018
DC No 561 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Cairns – Date of Conviction & Sentence: 19 April 2018 (Morzone QC DCJ)

DELIVERED ON:

21 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2018

JUDGES:

Philippides JA and Brown and Ryan JJ

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – SUMMING UP – where the appellant was convicted by a jury of two counts of indecent treatment of his stepdaughter under 12 (domestic violence offences) – where count 1 was particularised as the appellant putting his hands inside her pants and touching her backside for five minutes – where count 2 was particularised as the appellant telling the complainant to get into his bed, where he was naked and telling her to put her hand on his penis and moving it up and down – where in the complainant’s police interview she referred to other uncharged acts when she was called into the appellant’s room to hold the appellant’s penis – whether there was a failure to adequately identify count 2 for the jury in the summing up such as to amount to a miscarriage of justice – whether the trial judge’s summing up resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was acquitted of one count of common assault which was particularised as the appellant throwing the complainant against the wall – where the appellant submitted that verdicts of guilty for count 1 and 2 were unreasonable as the acquittal of common assault was inconsistent with the guilty verdicts on counts 1 and 2 – whether the verdict was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to nine months’ imprisonment for count 1, 12 months’ imprisonment for count 2, to be served concurrently and to be partly suspended after serving six months with an operational period of two years – where if only ground 1 of the conviction appeal is successful the appellant seeks an extension of time to appeal against sentence imposed on count 1 – where the Verdict and Judgment Record shows that the appellant was sentenced to imprisonment for nine months, suspended after having served six months – where the appellant submitted it was not the sentencing judge’s intention to require the appellant to serve more than half of the head sentence and the sentence for count 1 should be varied by substituting four and a half months for six months – whether the sentence for count 1…

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Details
AGLC
R v CCG [2018] QCA 361
Case
[2018] QCA 361
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction by a jury of two counts of indecent treatment of his stepdaughter under 12. Count 1 was particularised as the appellant putting his hands inside her pants and touching her backside for five minutes. Count 2 was particularised as the appellant telling the complainant to get into his bed, where he was naked and telling her to put her hand on his penis and moving it up and down. The appellant submitted that the trial judge’s summing up resulted in a miscarriage of justice by not adequately identifying count 2 for the jury and that the verdicts were unreasonable or could not be supported having regard to the evidence. He also appealed against his sentence and sought an extension of time to appeal against the sentence imposed on count 1.

The court held that the summing up did not result in a miscarriage of justice as the jury would not have been left in any confusion that the act the subject of count 2 and conduct the subject of the uncharged acts were distinct and that count 2 concerned a specific occasion that the complainant recalled occurring on a weekend in the appellant’s bedroom. The court also held that the verdicts were not unreasonable or could not be supported having regard to the evidence. The court further held that the sentence for count 1 should be varied by substituting four and a half months for six months.

The appeal against conviction was dismissed. The sentence for count 1 was varied by substituting four and a half months for six months.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the appellant succeeded on ground 1 only, an extension of time was sought within which to appeal against the sentence imposed on the remaining count (count 1). The application is brought because the Verdict and Judgment Record[2] showed that on count 1 the appellant was sentenced to imprisonment for nine months, that term to be suspended after he had served six months. That order for suspension was consistent with the sentence order for count 2 (imprisonment for 12 months, suspended after six months). It was not the sentencing judge’s intention to require the appellant to serve more than half of the head sentence. The sentence order on count 1 should be varied by substituting four months for six months.[2]The Verdict and Judgment Record is the authority for the appellant’s detention in prison (Corrective Services Act 2006, s 9(1)).The evidence of the offending Both offences were alleged to have been committed in the family home.Count 1 Count 1 was alleged to have occurred when the complainant was in the kitchen washing up after lunch. In her police interview, pursuant to s 93A of the Evidence Act 1977 (Qld),[3] the complainant, after having referred to generalised complaints of sexual offending that “happened all the time”, was asked to identify “the very first incident that you could remember”.[4] The complainant said that the appellant approached her from behind while she was washing up in the kitchen and put his hands down her shorts inside her underwear, touching her bottom for about five minutes. The complainant’s little sister was asleep on the couch. Her brothers were playing Lego and then came into the kitchen but were told by the appellant to go back to their bedroom. The appellant warned the complainant, “If you tell Mum that I ever did this you –­ you will pay”.[5][3]AB2 at 184-186.[4]AB2 at 184.40.[5]AB2 at 186.35-186.36.Count 2 In her police interview, the complainant was asked to tell the police officer “about the next incident” and responded by referring to “numerous times” when she was called into the appellant’s room, “non-stop”, and “He’d get his front part out of his pants … and grab [her] hand and hold it on it”. She was then asked to recount “one time that [she] remembered really well”.[6] The complainant answered by referring to the conduct alleged to constitute count 2 as follows:[7]“Um, he said he called me - he said, ‘Come into my room. Shut the door behind you.’ My brothers were outside, they were like worried and stuff, um, and he said, ‘Get in the bed. Get in the bed now.’ He grabbed my hand instantly, put - got his thing out of his pants put mine on it and was moving my hand up and down and when - and he has a disease on it which is something I didn’t really want to do ‘cause and I would have never let that happen. The first time he did it I think I was only eight or nine.”[6]AB2 at 189.1.[7]AB2 at 189.4-12. The complainant was asked about “this particular time”, by the police officer who said “we’ll say it’s the first time that you remember him doing it”.[8] The complainant gave evidence[9] of one occasion when she was playing on her brother’s DS and they were outside.[10] The appellant called her to his bedroom while he was in bed. He told her to shut the door and get in the bed. She said, “he got his thing out of his pants, pulled his pants off, threw them on the floor and was naked in the bed”. The appellant put the complainant under the blanket. He grabbed her hand and moved it up and down. He used his left hand and was squeezing her hand so that it was “very purple”. She did not know the correct name for his “thing” but also called it his “doodle” and said he used it for peeing. The complainant said after she jumped out of bed, ran out, washed her hands and ran to her room and shut the door. She said she was pretty sure she was nine turning 10 at the time. It happened after lunch on a weekend which the complainant thought was the first weekend at her mother’s (she spent alternate weekends with each parent).[11][8]AB2 at 189.23.[9]AB2 at 189-191.[10]AB2 at 189.50.[11]AB2 at 191.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As to the risk that the jury may have reasoned from the numerous occasions that the appellant must be guilty of at least one, the jury were cautioned against propensity reasoning.[46][46]AB1 at 48.22-48.31.Consideration In my view, the respondent’s submissions on the matter of duplicitous charges should be accepted. The difficulties of inadequate particularisation, identified in S v The Queen and summarised in R v KP; Ex parte Attorney-General (Qld),[47] did not arise in this case, given the detail provided in the complainant’s s 93A statement as to the events constituting count 2. The complainant’s evidence identified the occasion with sufficient particularity so as to exclude any possibility of latent ambiguity. Accordingly, this was not a case where latent ambiguity was raised. Nor is it surprising that no particulars were sought as to count 2.[47][2006] QCA 301 at [48]. As to the trial judge’s summing up as to count 2, the appellant’s submissions focussed on a single portion of the summing up quoted in para [18] hereof. That paragraph reflected the defence address concerning that count:[48]“Now, in respect of the second count of indecent treatment, that in – that concerns the allegation of [the appellant] placing [the complainant’s] hand on his penis. [The complainant] begins by telling police that he would non-stop call her into his room, and my learned friend has earlier today drawn your attention to all of these uncharged acts which she says proves that [the appellant] had a sexual interest in [the complainant].”[48]AB1 at 30.29-34. Both the defence address and the summing up reflected the s 93A evidence of the complainant who when asked about the “next incident”, referred to “non-stop calling me into his room”, before detailing a particular occasion particularised as count 2. As to the paragraph of the summing up the subject of complaint, while it may have been better for the trial judge to have distinguished the uncharged acts from the particular occasion forming count 2, I do not consider a miscarriage of justice resulted flowed from that complaint Taking the summing up as a whole into account, the jury would not have been left in any confusion that the act the subject of count 2 and conduct the subject of the uncharged acts were distinct and that count 2 concerned a specific occasion that the complainant recalled occurring on a weekend in the appellant’s bedroom.[49][49]AB1 at 60.1-60.5. His Honour’s “brief summary” of the complainant’s evidence concerning count 2 commenced with a reference to the uncharged conduct before referring to the complainant’s recollection of count 2 as occurring on “a weekend”. After doing so, his Honour returned to the matter of the generalised uncharged acts and gave the jury specific instructions of the limited manner in which that evidence was able to be used by them as follows:[50]“In this case, the prosecution relies upon additional evidence which are (sic) not the subject of the specific charges. The [appellant] here is charged only with the three offences on the indictment. In addition to the evidence of the complainant relating to those charges, the prosecution has led evidence of other alleged incidents which [the prosecutor] says are of a nature – of a sexual nature involving the [appellant] and that she relies upon those things as showing a sexual interest. These are things that the complainant has not been specific about when the activity has occurred or other more specific events that she has remarked about. I can summarise these for you.”[50]AB1 at 47.14-47.21.