District Court at Rockhampton – Date of Conviction and Sentence: 29 April 2016
DELIVERED ON:
16 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2017
JUDGES:
Gotterson and McMurdo JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Appeal against the convictions dismissed.
2. Grant leave to appeal the sentence on each count.
3. Allow the appeal against sentence on each count.
4. Order that the appellant be sentenced to a term of five years’ imprisonment on each count, to be suspended after two and a half years with an operational period of five years.
5. Order that a conviction be recorded for each offence and that it be declared to be a conviction for a domestic violence offence.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of two offences of having carnal knowledge of his daughter – where the offences were committed over 40 years prior to the trial – where the complainant gave evidence that the appellant had sexual intercourse with her on numerous occasions when she was 15 and 16 years of age – where the complainant gave evidence that she reported the offending to police in 1973 but left the station without completing a statement – where, in the period between the police interview in 1973 and the formal complaint made in 2011, the appellant had no further sexual contact with the complainant and the latter described their relationship as otherwise “fair” – where, prior to trial but after the police interview, the complainant travelled overseas with the appellant and moved into a self-contained unit beside his property – whether, having regard to the amelioration of the relationship, the verdicts of guilty were open to the jury – whether the verdicts are unreasonable
CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – where the appellant sought leave to adduce a number of documents, including from government agencies, about the complainant’s alleged behavioural problems prior to the offending – where the evidence included documents that show that the complainant came to the attention of police and welfare agencies for incidents of sexual conduct with men and teenage boys – where the appellant contended that the evidence was relevant to the complainant’s credibility – whether the evidence could have that impact on the minds of a properly instructed jury – where the respondent tendered an affidavit by the appellant’s trial counsel which evidenced the appellant’s informed consent not to give or call evidence – whether the appellant’s trial counsel’s failure to call evidence about the complainant’s prior sexual experience resulted in…
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.
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Details
AGLC
R v EL [2017] QCA 135
Case
[2017] QCA 135
Decision Date
CaseChat Overview and Summary
In this case, the appellant was convicted of two counts of having carnal knowledge of his daughter, offences which occurred over forty years prior to the trial. The complainant testified that the appellant had sexual intercourse with her on multiple occasions when she was 15 and 16 years old. The court had to determine whether the verdicts of guilty were open to the jury given the evidence presented. The court also had to consider the admissibility of certain documents regarding the complainant's prior sexual conduct, and whether the appellant's trial counsel's decision not to call such evidence resulted in a miscarriage of justice. Furthermore, the court examined whether the sentence imposed was manifestly excessive, particularly in light of the appellant's age and the absence of any other criminal history.
The court found that the verdicts of guilty were open to the jury, and rejected the argument that the verdicts were unreasonable. The court held that the evidence, including the complainant's testimony, supported the verdicts. The court also found that the appellant's trial counsel had a wide discretion in deciding what evidence to call, and there was no miscarriage of justice in the decision not to call evidence about the complainant's prior sexual experience. As for the sentence, the court found that the sentence imposed was manifestly excessive, and that the trial judge had not adequately considered the appellant's age and absence of criminal history. The court held that the sentence should have been more lenient, taking into account these factors.
The court ordered that the appeal against the convictions be dismissed, but granted leave to appeal the sentence on each count. The court allowed the appeal against sentence on each count and ordered that the appellant be sentenced to a term of five years' imprisonment on each count, to be suspended after two and a half years with an operational period of five years. The court also ordered that a conviction be recorded for each offence and that it be declared to be a conviction for a domestic violence offence.
Orders
Orders of the court
1. Appeal against the convictions dismissed.
2. Grant leave to appeal the sentence on each count.
3. Allow the appeal against sentence on each count.
4. Order that the appellant be sentenced to a term of five years’ imprisonment on each count, to be suspended after two and a half years with an operational period of five years.
5. Order that a conviction be recorded for each offence and that it be declared to be a conviction for a domestic violence offence.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The respondent’s outline of submissions anticipated also an argument that the verdicts were unreasonable, that is to say that upon the evidence it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty.[1] That argument is not discernible in the appellant’s notice of appeal and written submissions. Nor was it made in the appellant’s relatively brief oral submissions. Having read the evidence at the trial, it is my view that the verdicts were open.[1]M v The Queen (1994) 181 CLR 487 at 493, 494-495.The evidence at the trial There were two witnesses at the trial: the complainant and an investigating police officer. The appellant did not give or call evidence. The prosecution case depended entirely upon the evidence of the complainant who was examined and extensively cross-examined. At relevant times in 1972 and early 1973, the appellant had the care of his five children. The appellant’s wife, who was the children’s mother, had formed a relationship with another man and was living in another state. The complainant was the oldest of the children. She was born in January 1957 so that she was 15 and 16 at the time of the offences. A brother was born in 1959, another brother in 1961, another brother in 1967 and a sister in 1968. Before the appellant and his wife separated, the family lived in a Melbourne suburb. In late 1971, they moved to Lightning Ridge, so that the parents could look for opals. According to the complainant, the family returned to Melbourne for a short time in 1972 before the appellant and the children moved to Anakie in Queensland. By this stage their mother had left the household. In Anakie, the appellant was searching for sapphires. At one stage the family was living in a campsite and at certain times it was living in what the complainant described as a Commer van which was described as a type of mobile home. The complainant said that some of the children, including the complainant, were then moved to or near Brisbane to stay with others for their welfare. However they each moved back to Anakie to re-join the family. The complainant said that she did so probably in August or September 1972. The family then moved to Emerald, where they lived in the Commer van in a caravan park. The complainant said that the first of the offences occurred towards the end of 1972. She said that in the days preceding that event, the appellant had been saying to her that “men actually needed special needs, and they needed women to help them out.” The complainant said that the appellant had been “grooming me for a while”. One night, when the family had gone to sleep for the night in the van, she said that the appellant tapped on her shoulder and told her to be quiet and not to make a noise. She was then lying on the bench where she normally slept. She said to the appellant that she “didn’t want to do this,” but that he was insistent. In her evidence in chief she then described the event as follows:“All right. And what happened after you saw the glare? --- I ended up just getting up off the bench, climbed over. He walked up to the back of the bed, dodging the kids that were on the floor. I don’t remember who slept where at the time, but I had to cross over two children over the floor. I’ve sat on the edge of the bed, and dad was on the right-hand side, and it’s whispered to me that I’d have to insert a tablet. I again said that I didn’t want to do any of this, he’d have to do something else, and again, he glared at me. I had to insert the tablet into my vagina, and ---Could you ---? --- I’d have to wait.Sorry. Do you know what the tablet was? --- It was called Arendal.Do you know what it was? --- I didn’t know what it was, I just know that I had to insert this tablet. But I had to wait: apparently, it foamed up.And how did you insert the tablet – well, did you see where the tablet came from? --- No. Dad had it. It was – it was a waxy-feeling tablet. I don’t know where he got it. I’d never sighted anything in any packet form or anything. He’d have this tablet in his hand, and he’d give it to me.And --- ? --- So I inserted this tablet and waited, and then he said I’d have to lay down. I tried delaying by saying I didn’t want to, and I would sit there and wait, and he’d say come on, come on, and ---And these conversations, do you know how loudly or softly you were speaking? --- Whispering, because we had all the kids in the car, and they were on the floor and on the bench, so it had to be really quiet. I couldn’t afford for the kids to hear anything. I had to make sure they didn’t see anything. I couldn’t live with myself knowing that the kids would be sitting there watching dad doing what he’s doing.And what happened after you --- ? --- I – I lay – I took my undies off, and I inserted the tablet, and [I lay] on the bed. He asked me to move. I sort of slid up the bed, rather than having my leg on the side of the floor, dangling.And what happened next? – He crawled on top of me, and he inserted his penis. I just turned my head to the side, and I just cried and thought this is wrong, this is my father. He’s supposed to honour me and treasure me. I couldn’t help but think it was an eternity of ---Well --- ? --- just laying there.Sorry. Where did he insert his penis? --- After the tablet had sort of foamed up after a couple of minutes. Well, it wasn’t even a couple of minutes. It had to be there for 30 seconds or something like that.”
Decision
Reasons for decision
The appellant’s submissions also include a list of the parts of the complainant’s testimony which he says were lies. In no case, is that established by evidence or argument. Rather, this is merely a series of assertions. The appellant has not demonstrated that his case was conducted in some way which could not be reasonably explained. It is well established that counsel has a wide discretion in the conduct of a criminal trial. As Gleeson CJ said in TKWJ v The Queen:[27]“[U]nfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused.”[28]And in this case, it does not appear even that a course was taken by his counsel which was to his possible disadvantage.Conclusion on the appeal against convictions[27](2002) 212 CLR 124 at 130-131 [16].[28]See also TKWJ v The Queen (2002) 212 CLR 124 at 156 [97] (McHugh J) and 158 [107] (Hayne J). The appellant has demonstrated no miscarriage of justice. If the reasonableness of the verdict is challenged, that challenge should be rejected. There was no irregularity at the trial or defect in the judge’s directions. I would order that the appeal against the convictions be dismissed.Application for leave to appeal against sentence It is argued that the sentence in each case was manifestly excessive. The appellant came to Australia in his twenties with his wife and their then children. He had training as a printer, which he used for most of his working life until his retirement at the age of 55. He had no criminal history. By the time of the trial, he had moved to Cairns where, as the judge accepted, he had been involved in charitable work. But his Honour added that that was not uncommon for someone who was awaiting his trial on a serious offence. The judge found that the offences had had a “significant impact” upon the complainant who was “plainly socially damaged” and distrustful of authority. He accepted her evidence that she felt still “dirty, horrible, degraded and always … sick.” The judge accepted that there had been an adverse impact upon her sex life with her first husband and that she required ongoing counselling. The judge described the offending as egregious. He said that it involved “a significant element of manipulation” by the appellant as a parent. In particular he had provided her with gifts which the other children did not receive. But the judge took into account that there had been no threats of violence which accompanied the offending. The judge said that in this case, the consideration of personal deterrence was not a major one, especially having regard to the appellant’s age and the absence of any other criminal history. He said that for the same reasons, the consideration of rehabilitation was not significant, although he had not demonstrated any insight into his offending and there had been no evidence of remorse. He said that the most relevant considerations were those of denunciation and general deterrence. He then pronounced the sentence.