R v Chardon

Case [2015] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chardon [2015] QCA 186

PARTIES:

R
v
CHARDON, John William
(appellant)

FILE NO/S:

CA No 211 of 2014
DC No 5 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Reopening (Criminal)
Miscellaneous Applications – Criminal – Applications to adduce further evidence and to add a further ground of appeal

ORIGINATING COURT:


District Court at Southport – Unreported, 18 July 2014

DELIVERED ON:

6 October 2015

DELIVERED AT:

Brisbane

HEARING DATES:

17 February 2015; 14 April 2015
Further submissions and material filed on 21 April 2015 and 12 May 2015

JUDGES:

Margaret McMurdo P and Gotterson JA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application to re-open the hearing of the appeal is granted.

2.   The applications to adduce further evidence and to add a further ground of appeal are refused.

3.   The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was charged with one count of indecent treatment of a child under 16, under care (count 1); four counts of indecent treatment of a child under 16 (counts 2, 3, 5 and 6); and three counts of rape (counts 4, 7 and 8) – where all counts concerned the same complainant and were charged as occurring between September 1998 and October 1999 – where the prosecution did not proceed on counts 3 and 5 – where the appellant was convicted on counts 1, 2, 6 and 7 – where the appellant was found not guilty on count 4 but was convicted on the alternative charge of attempted rape – where the appellant was found not guilty on count 8 but was convicted on the alternative charge of unlawful carnal knowledge – where the complainant gave evidence to support all counts on which the appellant was convicted – where the complainant made preliminary complaints to a school friend, a school counsellor and a psychologist – where the complainant gave evidence that she told the appellant’s two daughters, Angela and Candice that the appellant had abused her – where the complainant visited the appellant’s house a few years later when she was over 16 – where the appellant offered her money if she would have sex with him – where the appellant offered the complainant $1,000 and told her that she could go on business trips with him and be his secret girlfriend – where the complainant agreed – where the complainant signed a piece of paper which she believed was a contract for $1,000 – where the appellant and the complainant then had a consensual, sexual paid relationship for approximately 18 months – where the appellant stated in a police interview that he had no sexual contact with the complainant until she was over 18 – where the appellant’s daughters Angela and Candice both gave evidence…

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Details
AGLC
R v Chardon [2015] QCA 186
Case
[2015] QCA 186
Decision Date

CaseChat Overview and Summary

The case of R v Chardon involves an appeal by the appellant against his convictions for various sexual offences, including indecent treatment of a child under 16, attempted rape, and unlawful carnal knowledge. The appellant was convicted based on the testimony of the complainant, who alleged that the offences occurred between September 1998 and October 1999 when she was under 16. The appellant's daughters provided evidence that contradicted the complainant's account, and the appellant argued that the verdicts were unreasonable or could not be supported by the evidence. The court was required to decide whether the verdicts were against the weight of the evidence and whether there had been a miscarriage of justice.

The court considered several legal issues, including whether the verdicts were against the weight of the evidence, whether there had been a misdirection or non-direction by the trial judge, and whether the judge's summing up fairly placed the defence case before the jury. The court also assessed whether the trial judge erred in leaving the defence of honest and reasonable mistake of fact as to consent to the jury only in relation to one count of the charge, and whether there was any miscarriage of justice due to the appellant not having certain information at the time of the trial.

The court found that the verdicts were not against the weight of the evidence, as the jury was entitled to consider the complainant's evidence, despite its inconsistencies and discrepancies, and to reject the defence evidence where it found it to be lacking in credibility. The court held that the summing up was fair and adequately placed the defence case before the jury. It also concluded that there was no miscarriage of justice in the trial judge's direction concerning the defence of honest and reasonable mistake of fact as to consent, as there was no evidence of such a defence in relation to the relevant counts. The appeal was dismissed, and the applications to re-open the hearing of the appeal, to adduce further evidence, and to add a further ground of appeal were refused.

The final orders of the court were to grant the application to re-open the hearing of the appeal, refuse the applications to adduce further evidence and to add a further ground of appeal, and dismiss the appeal against conviction.

Orders

Orders of the court

1. The application to re-open the hearing of the appeal is granted.

2. The applications to adduce further evidence and to add a further ground of appeal are refused.

3. The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Before directly discussing these grounds of appeal and the applications to re-open the appeal and adduce further evidence, it is helpful to first review the evidence at trial.The evidence at trialThe complainant’s evidence The complainant was born on 12 September 1984 and the alleged offences occurred around the time of her 15th birthday. Her evidence concerned events 15 years prior to the trial, by which time she was almost 30 years old. She was a close friend of the appellant’s daughter, Angela, with whom she had attended a Gold Coast primary school. One evening prior to Angela leaving to attend a Brisbane boarding school, the complainant went to a sleep-over at Angela’s house. The appellant’s elder daughter, Candice, was also present. The appellant had bought them a case of Lemon Ruskis, a pre-mixed vodka drink. The three girls sat at the kitchen table drinking them while the appellant was drinking bourbon. She described herself as “drunk” and said that all three girls were “tipsy and happy”.[1] She went to the toilet. As she was coming out, the appellant walked in and “started feeling [her] boobs and below”.[2] He rubbed her breast with one hand and then moved his hand down to her vagina area and was “just rubbing up and down with one hand”[3] on the outside of her clothes (count 1). She vaguely recalled him asking if she liked it; “does it feel good”.[4] She was “getting all upset and … pushed him away”.[5] She felt sick and vomited in the bathroom. The appellant was annoyed that she had vomited on the wall and he had to clean it up. [6] She told Angela what had happened in the toilet before they went to bed.[1]T 1-9, lines 29 – 34.[2]T 1-10, line 3.[3]T 1-10, line 45.[4]T 1-11, line 5.[5]T 1-11, line 7.[6]T 1-11, line 18. She visited Angela on her first weekend home from boarding school. Candice was not there. On the Sunday afternoon, the appellant drove her and Angela to the station so that Angela could catch the train to return to Brisbane. As he was driving the complainant home at about 5.00 or 6.00 pm, he pulled over and asked her about her relationship with her boyfriend. He asked if she had had oral sex. She said “no”. She was sitting directly behind him. He reached his arm around and felt her legs. He said “I’d like to go down on you”[7]… “show you how good it feels.”[8] He asked her to move to the front seat but she refused. He eventually drove off. He offered to pay her to clean his house. When they arrived at her home she went straight to her bedroom. He made arrangements with her parents to collect her from school so that she could earn extra pocket money by cleaning his house.[7]T 1-12, line 35.[8]T 1-12, line 35. The following week he picked her up from school and took her to his home. She changed out of her uniform into a baggy t-shirt and board shorts. He gave her a cloth, spray and a broom. When she was cleaning the study he sat her down on a chair and said “I’d like to really try going down on you.”[9] “I think you’ll like it”.[10] She felt “very uncomfortable.”[11] He hugged her and said he would give her more money. He took her hand and led her into the spare room, which contained only a single bed and a built-in wardrobe. He shut the door and asked her to take off her clothes but for her socks. She felt scared[12] and she complied. He asked her to lie on the bed. She lay on her back on the bed. He was naked from the waist down and said “I’m going to go down on you and you will like it”.[13] She “was just saying no. No. … just sobbing.”[14] He licked her vagina for a couple of minutes (count 2). He said words to the effect of “I love young pussy”.[15][9]T 1-15, line 17.[10]T 1-15, line 18.[11]T 1-15, line 28.[12]T 1-16, line 23.[13]T 1-17, line 19.[14]T 1-17, line 22.[15]T 1-17, line 46.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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