R v CCT

Case [2021] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCT [2021] QCA 278

PARTIES:

R
v
CCT
(appellant/applicant)

FILE NO/S:

CA No 313 of 2019
DC No 282 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 31 October 2019; Date of Sentence: 4 November 2019 (Clare SC DCJ)

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2020

JUDGES:

Sofronoff P and McMurdo JA and Applegarth J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DIMISSED – where the appellant was convicted by a jury of one count of maintaining a sexual relationship with his biological daughter and other offences against her – where the appellant relies on what are said to be inconsistencies in the complainant’s evidence, a poor recollection by her of certain events and inconsistencies in the preliminary complaint witnesses’ evidence – where there was a lengthy delay – whether the verdicts are unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s first language is Thai – where an order was made in the District Court appointing an interpreter for the trial – where the appellant complains that the interpreter did not interpret for him, as required, throughout the trial – whether the interpretation provided to the appellant at trial allowed him to understand the proceeding and the nature of the evidence against him so as to decide whether to give or call evidence and, if so, upon what matters evidence would be given

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant was convicted by a jury of one count of maintaining a sexual relationship with his biological daughter and other offences against her – where two preliminary complaint witnesses gave evidence that “it may have happened to other family members as well” and “she went to live with her dad so that she could try and protect her siblings” – where an application was made by defence counsel to discharge the jury because the preliminary complaint witnesses’ answers were said to be inadmissible evidence that suggested the appellant had interfered with other family members – where the learned trial judge declined to discharge the jury – where the trial judge directed the jury, both after a preliminary complaint witness’ evidence and in the summing up, to disregard the evidence – whether the preliminary complaint witnesses’ comments were highly prejudicial and amounted to a miscarriage of justice which was not avoided by the directions given – whether the judge erred in not discharging the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL…

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AGLC
R v CCT [2021] QCA 278
Case
[2021] QCA 278
Decision Date

CaseChat Overview and Summary

In the case of R v CCT, the appellant appealed against his convictions and sentence. The appellant was convicted by a jury of one count of maintaining a sexual relationship with his biological daughter and other offences against her. The appellant argued that the verdicts were unreasonable or could not be supported having regard to the evidence, that the interpretation provided at trial was inadequate, and that the trial judge erred in not discharging the jury. The appellant also argued that the sentence was manifestly excessive.

The court considered the arguments advanced by the appellant and performed an independent examination of the whole of the evidence. The court found that the jury was open to be satisfied of the guilt of the appellant based on the evidence presented. The court found that the interpretation provided at trial was sufficient for the appellant to understand the proceedings and evidence against him. The court found that the trial judge's directions to the jury were clear and emphatic, and that the potential prejudice arising from the unresponsive and inadmissible answers was counteracted. The court found that the sentence was not manifestly excessive.

The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The appeal against conviction was dismissed because the court found that it was open to the jury to be satisfied of the guilt of the appellant based on the evidence presented. The application for leave to appeal against sentence was refused because the court found that the sentence was not manifestly excessive.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

Upon analysis of the complainant’s evidence and the evidence of the other witnesses, alleged inconsistencies and discrepancies could be explained. After an independent examination of the whole of the evidence, this Court should determine that it was open to the jury to be satisfied of the guilt of the appellant.The background to Counts 1 to 7 The complainant was born in 1984. Her mother had lived in a refugee camp in Thailand before she moved to Australia, aged 19. She met the appellant shortly after her arrival in Australia and married him soon afterwards. After her marriage, she moved into the house in which the appellant lived with his mother and stepfather. The complainant was born not long afterwards. The complainant’s parents’ relationship broke down after a few years. The complainant’s mother moved out of the house at Ashfield and to a distant suburb. The complainant was three years old at the time. The complainant’s mother explained that she was “allowed to see” her daughter once every fortnight. After the complainant’s parents separated, the complainant’s mother did not have any support from the appellant or his family. In July 1998, a formal order granted custody of the complainant to the appellant’s mother and stepfather. As a young child, the complainant’s family was dominated by her grandmother’s husband and by the appellant. The appellant’s mother and her husband had two young children who were about the same age as the complainant. These aunts, Sarah and Mary, lived in the same house as the complainant. Sarah was two years older than the complainant and Mary was six months younger than her. The complainant’s “grandfather” was said to be “very abusive” towards the three children. He would do things like hold a rifle to their face and make them look down the barrel, lock them out of the house in the middle of the night, or throw them down stairs. The children would explain their injuries by saying things like “we fell off a tree”. The complainant had little recollection of her mother during the few years that they lived together with the appellant’s family at Ashfield. She had little contact with her afterwards. She explained “I never knew who my mum was”, but just wanted to be with her. The complainant’s evidence was that when she was young, and after her mother moved to another suburb, the appellant used to come up to her and say, “how much do you love daddy?” at which time she “just froze”. This was the precursor to sexual abuse. He would come up to her and say these things when she was in the backyard, watching television with her aunts or playing with them, or in other places in the house at Ashfield. The complainant thought she was two to three when the appellant’s sexual abuse of her first occurred, but she could not recall how old she was. Early in her evidence-in-chief she was asked about “the very first event that sticks out in your mind”. She recalled an occasion which will be discussed in connection with Count 5. By this time her father had remarried. A child named Scott was born in 1998, making him about four years younger than the complainant. The appellant’s new wife was deported and the child Scott was left with the family in Ashfield.Counts 1 and 2 – the backyard counts

Evidence

Evidence Before The Court

The final complaint witness, Ms Hickman, met the complainant in a professional capacity around 2015 when the complainant was studying. Initially the complainant told Ms Hickman that things had happened to her as a child “that no adult should do to another”. The two women stayed in contact and one night during a telephone call the complainant reported that she had been molested as a child by her father. The complainant said that it had happened repeatedly during her childhood. The complainant gave some detail about the events, including that the appellant would always make her take a shower afterwards.Other evidence or its absence After the complainant went to police in 2016 contact with her father’s family ceased. The investigating police officer gave evidence about her investigations, including the fact that the complainant’s grandmother, her aunts Sarah and Mary and her stepmother did not wish to provide a statement to police. Evidence adduced on the appeal indicated that the appellant’s trial solicitors obtained a statement from Mary. The prosecution seemingly was not asked to call Mary as a witness and there is no criticism of the prosecution for that. As noted, the appellant exercised his right to neither give nor call evidence.Application of relevant principles The fact that many of the arguments advanced by the appellant on this ground of appeal were advanced on his behalf at the trial and highlighted by the trial judge does not relieve this Court of its obligation to perform an independent examination of the whole of the evidence and to consider those and other arguments. In discussing the evidence of the particularised offences, I have considered contentions raised in the appellant’s submissions about alleged deficiencies in parts of the complainant’s evidence. These observations need not be repeated. It is, however, necessary to consider the accumulated criticisms of her evidence to decide whether, on the assumption that the jury found the complainant’s evidence to be credible and reliable, it should nevertheless have entertained a reasonable doubt about the appellant’s guilt, so that this Court should conclude that there is a significant possibility that an innocent person has been convicted. My independent assessment of the whole of the evidence should take account of the lengthy delay in the complainant taking her allegations to the police and the consequences of delay on the appellant’s ability to defend himself.[10][10]Longman v The Queen (1989) 168 CLR 79. Insofar as the appellant points to imprecision in the complainant’s evidence about her age at the time of certain events, this imprecision is understandable. Her evidence about the location of each particularised offence is submitted, along with other matters, by the appellant to make his convictions unsafe. However, in my view, her evidence about those locations accords with other evidence about the state of houses and other places, including who resided there at particular times.

Decision

Reasons for decision

The respondent submits that the evidence in this case did not necessitate the jury’s discharge and that the appropriate remedy was the directions which were given by the trial judge. They are said to have adequately counteracted any potential prejudice that the non-responsive answers could have caused to the appellant.Did the decision to not discharge the jury result in a miscarriage of justice? I am not persuaded that the trial judge erred in deciding to not discharge the jury. The evidence, while inadmissible and having the potential to prejudice the appellant, did not necessitate the discharge of the jury to ensure a fair trial. As the appellant submits, the jury could not “unhear” what they should not have heard. However, the relevant inquiry is not whether the evidence was inadmissible, but whether its admission was potentially or actually prejudicial and whether discharging the jury was necessary to address that prejudice and to ensure a fair trial. The potential prejudice of the evidence falls to be assessed against the whole of the evidence, including the complainant’s evidence about her reasons for going to live with the appellant’s family some months after she had returned to Brisbane from Sydney. Her evidence did not suggest that she did so out of a concern to protect her siblings with whom the appellant was living at the time. The brief and unresponsive answers of Ms Findlay and Ms Hickman suggested otherwise. Even if their evidence had gone without further comment by the trial judge, the jury might have concluded that they were not giving a reliable report of the complainant’s reasons for going to live with the appellant or a reliable report of any accusation that she actually made about the safety of other family members. Ms Findlay’s answers raised the possibility that something similar may have happened to other family members. That speculation had a potential to prejudice, but was not as prejudicial as a purported report of the complainant saying that such things had actually happened to another family member. Ms Hickman’s answer was less prejudicial, being about the reason she understood the complainant went to live with her father. It was a concern to try to protect her siblings, rather than an assertion of actual wrongdoing by the appellant towards those siblings. If the two witnesses’ answers had been left without comment or emphatic directions from the trial judge, then they had the potential to prejudice, despite their brevity, by encouraging the jury to speculate about the reasons the complainant moved in with her father (a reason which the complainant did not proffer) and to speculate that her siblings needed protection from their father. However, the brief and unprompted evidence of Ms Findlay and Ms Hickman was the subject of comment by the trial judge and suitable, emphatic directions. The trial judge’s directions, both shortly after Ms Findlay was excused and in her summing up, were clear. No complaint was made at the trial or on appeal about their terms. In my view, the trial judge’s clear and emphatic directions were apt to counteract the potential prejudice to a fair trial of the appellant arising from the two unresponsive and inadmissible answers.

Ratio Decidendi

Legal Principle Established

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