R v Chardon - [2017] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chardon [2017] QCA 253

PARTIES:

R
v
CHARDON, John William
(appellant)

FILE NO/S:

CA No 187 of 2016
DC No 358 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 13 June 2017 (Kingham DCJ)

DELIVERED ON:

31 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2017

JUDGES:

Fraser and McMurdo JJA and Mullins J

ORDER:

Appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children – where all four children present on the day of offending were under the age of 12 – where there were inconsistencies between the children’s recollection of the events – where important aspects of the complainant’s evidence were internally inconsistent or were contradicted by other evidence – where the appellant has appealed against the conviction on the grounds that it was unreasonable and cannot be supported having regard to the evidence – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children – where all four children present on the day of offending were under the age of 12 – where the first three of the four counts were of indecent treatment of a child with circumstances of aggravation – where the fourth count was of rape – where the appellant was convicted of count 3 – where the appellant has appealed against the conviction on count 3 on the grounds that it was unreasonable as it was inexplicably inconsistent with the acquittals on counts 1, 2, and 4 – whether there was a rational explanation for the acquittal on counts 1, 2, and 4 – whether the conviction on count 3 was impermissibly inconsistent with the acquittal on counts 1, 2, and 4

Criminal Code (Qld), s 668E(1)

Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Clapham [2017] QCA 99, cited
R v Kirkman (1987) 44 SASR 591, cited

COUNSEL:

P Davis QC, with A J Kimmins, for the appellant

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 Chardon

Details

AGLC: R v Chardon [2017] QCA 253
Case: [2017] QCA 253
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of R v Chardon, the appellant was convicted of one count of indecent treatment of a child with circumstances of aggravation. The appellant appealed against this conviction on the grounds that it was unreasonable and could not be supported by the evidence. The court had to decide whether the jury's conviction was reasonable, considering the evidence presented. Additionally, the court examined whether the conviction on count 3 was inconsistent with the acquittals on counts 1, 2, and 4.

The court found that the evidence presented was complex and contained inconsistencies, particularly in the testimonies of the children involved. However, the court held that it was open to the jury to determine the reliability and honesty of the complainant's evidence. The court concluded that the jury was reasonably satisfied beyond reasonable doubt that the appellant was guilty of the offence on count 3. The court found no basis to interfere with the jury's verdict, as it was reasonably open to them to find the appellant guilty based on the evidence presented.

The appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In A’s s 93 statement, A said he thought the relevant events occurred either on Easter Sunday or on New Year’s Eve. He was unable to say which. It is evident from his statement that he was unsure whether the events happened on a Saturday or Sunday. A said that he and D went swimming first and then B and C came to the pool. After they arrived, the appellant “came in naked” wearing goggles.[7] A did not know when the appellant took his clothes off. A described seeing the appellant’s penis and his bottom. A said that he forgot to tell his mother that he saw the appellant swimming naked in the pool.[8] When he and D were inside the house he heard the appellant ask B whether she wanted to have another look at his penis, to which B responded, “eww”.[9] (A also said in that context that the appellant pointed at “the thing”. A did not explain how he could have seen that from inside the house.[10]) In A’s pre-recorded evidence he agreed in cross-examination that he heard his sister speak about the events when their mother was also present. During that conversation, A remembered an occasion on a weekend before the events occurred when the appellant hit him repeatedly with a wooden spoon. A agreed that was the only thing he told his mother about the events at the appellant’s place. A said that B told their mother about everything the appellant did to her. He agreed that their mother and the appellant’s second oldest daughter had a massive falling out at about this time. Their mother hated the appellant’s family. A agreed that, before he went to the police station to speak about the events, he had heard his sister speak about that weekend to their mother. A said that he and the other children had two swims on that Sunday morning. He thought he had told the police that he had had two swims. He then said that he had one swim and B had two swims. A saw the appellant take off his shorts and underwear and put his goggles on so that he was naked. He saw the appellant dive into the pool and start swimming up and down the pool, following B. A said that he heard B tell their mother that the appellant pointed at his penis and asked B whether she wanted to have one more look at that. He also said that B told him that when she got out of the pool. He said that he had told the police that his sister had told him that. (He had not told the police that.) A made it clear that he had not seen that event.[11][7]AB 744.[8]AB 747.[9]AB 739, 745.[10]AB 745.[11]AB 757 line 40.B’s evidence Towards the beginning of B’s s 93A statement, she stated:[12](a)“I think it was the start of Easter or something like that … I went to … my friends house and um there was this old man swimming naked in the pool … when it was end of pool time he was standing in front of the pool and he said do you want to have one more look at my private part but he actually pointed at it he didn’t say private part” (Count 2)(b)“and then um when we got out of the pool I had a shower … and … I called my best friend to get me a towel … and then all of a sudden I saw the old man walk in with a towel holding in his hand … and then he just came in and started drying me and putting the towel through my bottom and poking it and poking through my bottom hole and it was really starting to hurt a bit …” (Count 4)(c)“and um then he was rubbing my private part with a towel and stuff really hard and it was hurting and then five minutes later he said don’t let anybody wipe you but me and your mum”. (Count 3)[12]AB 652-653.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant’s second eldest daughter said that her relationship with A and B’s mother started to wane over about two months after Easter and later they had arguments. The appellant’s eldest daughter said that she had a fairly large argument with the A and B’s mother about a few months after Easter and ceased to have any personal contact. She had seen A and B’s mother physically disciplining and being quite violent to A and B; she hit A with a glue stick, leaving welts on his back and his arm, which A later said he had incurred by being stung by a jellyfish, and A and B’s mother had pulled B’s hair, dragged her to the ground, and hit her.Consideration It is common ground that the Crown case depended upon the jury accepting the reliability and honesty of the evidence of count 3 given by B. The appellant argued that the guilty verdict on count 3 was unreasonable because important aspects of her evidence were internally inconsistent or were contradicted by other evidence. The appellant argued that in B’s s 93A statement B told the police officer that she had arrived at the appellant’s house with her mother between 12 and 1 o’clock and the children went swimming in the pool after her mother left, and B made similar statements in her pre-recorded evidence, whereas the evidence of the appellant, his two eldest daughters, and A and B’s mother was to the effect that A and B were left at the appellant’s house on Saturday night and the appellant drove them to the markets on Sunday morning, leaving his place around 10.30 am. The appellant also argued that there was an inconsistency between B’s s 93A statement and her pre-recorded evidence that in the former B described all of the relevant events happening in sequence on one occasion, whereas in the latter B referred to there being two separate occasions of swimming, the children having sandwiches in between those occasions, and the offence charged in count 3 occurring after the second occasion (see [14]-[16] of these reasons); other children did not give evidence of their time in the pool being interrupted by having sandwiches. In considering these arguments it is necessary to bear in mind that: when B was first asked what time her mother took her at the appellant’s house she expressed uncertainty about it before tentatively giving the times relied upon by the appellant (see [11] of these reasons); and B’s initial answers to defence counsel’s questions in cross-examination about the sequence of events were expressed in tentative term - when defence counsel put to B that the appellant had got out of the pool earlier than the children and went inside to make sandwiches, B responded, “I think after we all got out, I think he did make some sandwiches”), and when defence counsel shortly afterwards asked when B saw that the appellant had no clothes on, she responded, “I think before we had a shower, we wanted – about after the sandwiches – we had to wait five minutes, because we had to let our tummies rest, but I think we went in the pool and I think that’s when he swam naked”.[40][40]AB 685.

CITATION:	R v Chardon [2017] QCA 253
PARTIES:	R v CHARDON, John William (appellant)
FILE NO/S:	CA No 187 of 2016 DC No 358 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 13 June 2017 (Kingham DCJ)
DELIVERED ON:	31 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2017
JUDGES:	Fraser and McMurdo JJA and Mullins J
ORDER:	Appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children – where all four children present on the day of offending were under the age of 12 – where there were inconsistencies between the children’s recollection of the events – where important aspects of the complainant’s evidence were internally inconsistent or were contradicted by other evidence – where the appellant has appealed against the conviction on the grounds that it was unreasonable and cannot be supported having regard to the evidence – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged on indictment with four offences – where the offences were alleged to have occurred during the same day – where the appellant had under his care four children – where two of the four children were the appellant’s children – where the other two children were friends of his children – where all four children present on the day of offending were under the age of 12 – where the first three of the four counts were of indecent treatment of a child with circumstances of aggravation – where the fourth count was of rape – where the appellant was convicted of count 3 – where the appellant has appealed against the conviction on count 3 on the grounds that it was unreasonable as it was inexplicably inconsistent with the acquittals on counts 1, 2, and 4 – whether there was a rational explanation for the acquittal on counts 1, 2, and 4 – whether the conviction on count 3 was impermissibly inconsistent with the acquittal on counts 1, 2, and 4 Criminal Code (Qld), s 668E(1) Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Clapham [2017] QCA 99, cited R v Kirkman (1987) 44 SASR 591, cited
COUNSEL:	P Davis QC, with A J Kimmins, for the appellant