R v CCH - [2019] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCH [2019] QCA 79

PARTIES:

R
v
CCH
(appellant)

FILE NO/S:

CA No 192 of 2018
DC No 353 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 29 June 2018 (Coker DCJ)

DELIVERED ON:

10 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2019

JUDGES:

Holmes CJ and Fraser and McMurdo JJA

ORDERS:

1.   Appeal allowed.

2.   Conviction quashed.

3.   A retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant gave evidence of a number of sexual incidents – where the complainant’s evidence of those sexual incidents was inconsistent as to where they occurred, what the complainant was wearing and what occurred – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of unlawful and indecent dealing with a child but found not guilty of two further counts of unlawful and indecent dealing with a child and one count of rape – where the complainant was unable to explain what sexual intercourse is – where the further counts of unlawful and indecent dealing with a child emerged at a critical point of a custody dispute between the complainant’s parents – where no Markuleski direction was requested by defence counsel, suggested by the prosecutor or given by the trial judge – whether it was reasonable for the jury to accept some of the complainant’s evidence whilst rejecting other parts of the complainant’s evidence – whether the trial judge erred by failing to give a Markuleski direction

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant gave evidence of a number of sexual incidents that could have been the subject of the count – where there was uncertainty in that evidence as to the location and physical acts involved in the incidents – where the prosecutor’s opening and closing addresses did not identify the incident the subject of the charge – where defence counsel sought a direction as to the factual matrix of the charge – where no such direction was given – whether the trial judge failed to direct the jury as to what was the incident the subject of the charge

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant made a preliminary complaint to her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v CCH

Details

AGLC: R v CCH [2019] QCA 79
Case: [2019] QCA 79
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the case of R v CCH, the appellant was convicted of unlawful and indecent dealing with a child. The court was required to determine whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there was a misdirection or non-direction by the trial judge. The complainant provided evidence of several sexual incidents, which were inconsistent in terms of location, clothing, and specific acts. Additionally, the court needed to assess whether the trial judge erred by failing to give a Markuleski direction or a direction regarding the limited use of evidence of a preliminary complaint. The outcome of the appeal hinged on whether the jury could reasonably accept some parts of the complainant's evidence while rejecting others, and whether the trial judge's omissions affected the fairness of the trial.

The court examined the inconsistencies in the complainant's testimony and the potential impact on the jury's decision. It considered whether the trial judge's failure to provide specific directions on the factual matrix of the charge and the limited use of preliminary complaint evidence constituted a misdirection or non-direction that could have led to an unsafe verdict. The court held that the appeal should be allowed based on the trial judge's failure to direct the jury regarding the specific incident in question and the limited use of the preliminary complaint evidence. Consequently, the conviction was quashed, and a retrial was ordered.

The court's reasoning focused on the importance of clear and specific jury directions to ensure the fairness and accuracy of the verdict. The inconsistencies in the complainant's evidence, coupled with the trial judge's omissions, led to the conclusion that the verdict was potentially unsafe. The inconsistencies in the complainant's testimony and the trial judge's failure to provide necessary directions undermined the reliability of the jury's decision. Therefore, the appeal was allowed, the conviction was quashed, and a retrial was ordered to rectify the errors and ensure a fair trial.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction quashed.

3. A retrial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, I would allow the appeal and order a retrial, upon the basis of that third ground of appeal and also because the judge failed to instruct the jury as to the limited use that could be made of evidence of a preliminary complaint.The evidence The complainant was born in April 2004. At relevant times, the appellant was in a de facto relationship with the complainant’s mother, living with her, the complainant and the complainant’s three younger siblings. The relationship began in August 2015, and at first the couple and her children lived in a house in Kelso, before moving to a property at Mt Louisa in February 2016. The complainant’s mother did shift work, leaving home at about 3.00 am and returning on some days at about 10.00 am and on others at about 2.00 pm. The appellant was not employed and he was to look after the children when their mother was out. After the move to Mt Louisa, but before July 2016, the complainant’s mother found a piece of the complainant’s underwear on the unmade bed in the bedroom used by the mother and the appellant. A little later the mother found a notebook in the complainant’s bedroom, which contained a note by the complainant of sexual misconduct by the appellant. After an initial objection by defence counsel, the relevant note was tendered by the prosecutor. No point is taken in this Court about its admission. It was a page and a half of the complainant’s handwriting. The note spoke of her love for her parents, her unhappiness about their separation and her anxiety that something would happen to her mother. Most relevantly, the complainant wrote this:“[T]he thing I[’]m scar[e]d of is to tell mum that I had sex with [the appellant] ever since last year. I hated it but it’s only when she was gone to work or out somewhere. I hate myself for it it started as his cuddles I[’]m afraid if I tell mum she will get up me and everyone will hate me … when [the appellant] started this sometimes I told him to stop and I would walk out this … to me was bad and I[’]m [truly] sorry …” After the mother showed the complainant the note, she took her to see a doctor and then the police. The complainant was interviewed by police on 20 July 2016 and again on the following day. Recordings of those interviews were tendered under s 93A of the Evidence Act 1977 (Qld) and what was there said became the basis of counts 1 and 2. After these events the mother took the children to live elsewhere for a short time, before returning with them to the house at Mt Louisa and resuming her relationship with the appellant. However, there were rules which were imposed on the children, as to not having any physical contact with the appellant and when and where they would use a bathroom. After a while, the mother gave up work to look after the children. In early January 2017, when the complainant and her sisters were staying with their father, the mother received a call from her own father, who asked her to go around to his house. When she arrived, the children’s father was there. As a result of what he then said to the mother, police again interviewed the complainant. A recording of that interview was tendered under s 93A and what was there said became the basis of counts 3 and 4.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v CCH [2019] QCA 79
PARTIES:	R v CCH (appellant)
FILE NO/S:	CA No 192 of 2018 DC No 353 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 29 June 2018 (Coker DCJ)
DELIVERED ON:	10 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2019
JUDGES:	Holmes CJ and Fraser and McMurdo JJA
ORDERS:	1. Appeal allowed. 2. Conviction quashed. 3. A retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant gave evidence of a number of sexual incidents – where the complainant’s evidence of those sexual incidents was inconsistent as to where they occurred, what the complainant was wearing and what occurred – whether the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of unlawful and indecent dealing with a child but found not guilty of two further counts of unlawful and indecent dealing with a child and one count of rape – where the complainant was unable to explain what sexual intercourse is – where the further counts of unlawful and indecent dealing with a child emerged at a critical point of a custody dispute between the complainant’s parents – where no Markuleski direction was requested by defence counsel, suggested by the prosecutor or given by the trial judge – whether it was reasonable for the jury to accept some of the complainant’s evidence whilst rejecting other parts of the complainant’s evidence – whether the trial judge erred by failing to give a Markuleski direction CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant gave evidence of a number of sexual incidents that could have been the subject of the count – where there was uncertainty in that evidence as to the location and physical acts involved in the incidents – where the prosecutor’s opening and closing addresses did not identify the incident the subject of the charge – where defence counsel sought a direction as to the factual matrix of the charge – where no such direction was given – whether the trial judge failed to direct the jury as to what was the incident the subject of the charge CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of unlawful and indecent dealing with a child – where the complainant made a preliminary complaint to her…