R v CCZ - [2023] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCZ [2023] QCA 237

PARTIES:

R
v
CCZ
(appellant)

FILE NO/S:

CA No 128 of 2023
DC No 371 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 July 2023 (Kent KC DCJ)

DELIVERED ON:

28 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2023

JUDGES:

Mullins P, Bond JA and Crow J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where the trial judge summarised the prosecution case including the prosecutor’s submissions on the demeanour of the complainant – where the trial judge provided general directions on factors including demeanour that might be relevant to the jury’s assessment of the complainant’s evidence – where the appellant’s counsel made submissions in addressing the jury about the delay between the alleged offending and the complainant’s complaint to the police – where the trial judge made a comment (rather than giving a direction) in relation to the submission about delay that reflected the summing up considered in R v Cotic [2003] QCA 435 – whether the summing up of the trial judge was unfairly weighted towards the prosecution

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where the trial judge proposed that two copies of the complainant’s pre-recorded evidence under s 21A of the Evidence Act 1977 (Qld) be provided to the jury during deliberations – where the appellant’s counsel at trial objected to that course as the jury had heard the evidence the previous day and had not requested for any of the evidence to be replayed – where the trial judge gave a lengthy direction about the use of the transcript and provided the two copies of the transcript to the jury – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where a portion of cross-examination of the complainant by the appellant’s trial counsel was directed at specific pages of a statement recorded in a police officer’s notebook when the complainant first went to the police – where the trial judge ruled that it was unfair for the appellant’s counsel to cross-examine the complainant on the notebook statement on the basis it related to the subject incident when it was a statement…

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 CCZ

Details

AGLC: R v CCZ [2023] QCA 237
Case: [2023] QCA 237
Decision Date: 28 November 2023

CaseChat Overview and Summary

The appellant, CCZ, appeals against his conviction for one count of indecent treatment of a child under 16 who is a lineal descendant, a domestic violence offence. The appeal focuses on three grounds: the alleged unfairness of the trial judge's summing up, the unnecessary provision of a transcript of the complainant’s evidence to the jury, and the exclusion of certain cross-examination evidence from the complainant's pre-recorded testimony. The appellant argues that these issues collectively or individually amounted to a miscarriage of justice.

The central legal issues before the court were whether the summing up of the trial judge was unfairly weighted towards the prosecution, whether the jury's receipt of a transcript of the complainant's evidence constituted an irregularity, and whether the trial judge erred in excluding portions of the complainant's cross-examination from the pre-recorded evidence. Each issue was examined in light of the principles of fair trial and the risk of a miscarriage of justice.

The court found that the summing up of the trial judge did not unfairly favour the prosecution. The judge's comment on the delay in reporting, while reflecting the summing up in R v Cotic, did not constitute an unfair direction. The court also determined that providing the jury with a transcript of the complainant's evidence, despite the appellant's counsel's objection, did not amount to an irregularity that would warrant a new trial. The exclusion of certain cross-examination evidence was deemed not to have prejudiced the appellant's case, as the excluded material did not relate directly to the incident in question. The court concluded that none of these issues amounted to a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against his conviction on three grounds:1.The summing of the learned trial judge was unfairly weighted towards the prosecution which risked ostensible bias.2.The jury was unnecessarily provided a transcript of the complainant’s evidence.3.The trial judge erred in ruling that passages of the cross-examination of the complainant were inadmissible.Relevant evidence The complainant’s evidence was pre-recorded pursuant to s 21A of the Evidence Act 1977 (Qld) before the trial judge on 25 July 2023. It comprised her evidence in chief, cross-examination and re-examination. The trial then commenced with the empanelment of the jury on 26 July 2023. The evidence in the trial commenced on 27 July 2023 with the complainant’s mother as the first witness and whose evidence included the following. There were several children of the marriage between the appellant and the complainant’s mother, including the complainant. The appellant and the complainant’s mother separated around May 2019. The complainant’s mother had observed that the complainant would recoil when the appellant cuddled her. She observed the Church incident when the complainant was seated between the appellant and her and the appellant placed his hand a bit higher than midway up the complainant’s thigh and started rubbing it in a way that the complainant’s mother thought was completely inappropriate, so she said to him not to do that and the appellant responded “Nothing wrong with that”. During cross-examination, the complainant’s mother conceded that the appellant saw the children unsupervised after they first separated up until 2022 when they were unable to agree on the conditions of continuing contact by the appellant with the children where the complainant’s mother was insisting the contact be supervised. The complainant’s mother denied the proposition put to her in cross-examination that she had used the complainant to make the allegation against the appellant to assist in the family law proceedings against the appellant. The only other witness for the prosecution was the complainant. The pre-recorded evidence of the complainant was played to the jury. The complainant described the kitchen incident as occurring sometime in April 2019 when she was in the kitchen doing the dishes, her mother and her younger siblings were outside playing and the appellant came into the kitchen behind her. The complainant stated:“He didn’t say anything, but he just came up behind me and - and- and rubbed his hands over me and then - and kind of pulled me back onto him. And - and then I - I felt his penis on my bum cheek and it felt hard …” The complainant estimated the kitchen incident lasted a few minutes. It was about a minute or so that he had pressed himself against her. The incident ended when her mother walked in and the appellant quickly left the kitchen. The complainant first moved out of home in May 2019 and stated the kitchen incident was “the initiating event” for her moving out.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v CCZ [2023] QCA 237
PARTIES:	R v CCZ (appellant)
FILE NO/S:	CA No 128 of 2023 DC No 371 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 28 July 2023 (Kent KC DCJ)
DELIVERED ON:	28 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2023
JUDGES:	Mullins P, Bond JA and Crow J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where the trial judge summarised the prosecution case including the prosecutor’s submissions on the demeanour of the complainant – where the trial judge provided general directions on factors including demeanour that might be relevant to the jury’s assessment of the complainant’s evidence – where the appellant’s counsel made submissions in addressing the jury about the delay between the alleged offending and the complainant’s complaint to the police – where the trial judge made a comment (rather than giving a direction) in relation to the submission about delay that reflected the summing up considered in R v Cotic [2003] QCA 435 – whether the summing up of the trial judge was unfairly weighted towards the prosecution CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where the trial judge proposed that two copies of the complainant’s pre-recorded evidence under s 21A of the Evidence Act 1977 (Qld) be provided to the jury during deliberations – where the appellant’s counsel at trial objected to that course as the jury had heard the evidence the previous day and had not requested for any of the evidence to be replayed – where the trial judge gave a lengthy direction about the use of the transcript and provided the two copies of the transcript to the jury – whether a miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence) – where a portion of cross-examination of the complainant by the appellant’s trial counsel was directed at specific pages of a statement recorded in a police officer’s notebook when the complainant first went to the police – where the trial judge ruled that it was unfair for the appellant’s counsel to cross-examine the complainant on the notebook statement on the basis it related to the subject incident when it was a statement…