R v FAK

Case [2016] QCA 306

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAK [2016] QCA 306

PARTIES:

R
v
FAK
(appellant/applicant)

FILE NO/S:

CA No 51 of 2016
DC No 100 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bundaberg – Date of Conviction & Sentence: 12 February 2016

DELIVERED ON:

22 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2016

JUDGES:

Morrison and Philip McMurdo JJA and North J
Separate reasons for judgment of each member of the Court, Morrison JA and North J concurring as to the orders made, Philip McMurdo JA dissenting in part

ORDERS:

1.   The appeal is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant was found guilty, after trial, of one count of maintaining an unlawful sexual relationship with a child, with a circumstance of aggravation, one count of rape, and three counts of indecent treatment of a child, under 16, under 12, under care – where the appellant was the complainant’s step-grandfather – where the Crown alleges that the appellant committed these offences against the complainant when she was aged between six and 14 years old – where a friend of the complainant gave preliminary complaint evidence – where the friend recounted things the complainant had told her, including this alleged exchange between the complainant and the appellant: “what are you doing, poppy, and he would say [your sister] lets me do it” – where an application was made by defence counsel to discharge the jury because of the potentially prejudicial effect of the reference to the complainant’s sister – where the learned trial judge ruled against discharging the jury, and gave a direction to the jury to disregard the evidence – where on appeal, it was said that this was highly prejudicial and amounted to a miscarriage of justice which was not avoided by the direction given – whether the judge erred in not discharging the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where it is alleged that the complainant went into her grandparent’s bedroom – where the grandmother was in the shower and the appellant was in the bed – where it is alleged that the appellant kissed the complainant, using his tongue – where it is also alleged that the appellant rubbed the complainant’s vagina, and inserted his finger, penetrating her vagina, amounting to the count of rape – where it was contended, on appeal, that the complainant’s evidence revealed sufficient uncertainty about whether penetration had occurred, such that it was not open to the jury to be satisfied beyond reasonable doubt – whether the verdict of guilty on the count of rape was unreasonable or insupportable having regard to all of the evidence

CRIMINAL LAW – APPEAL AND…

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R v FAK [2016] QCA 306
Case
[2016] QCA 306
Decision Date

CaseChat Overview and Summary

In the case of R v FAK, the appellant was found guilty of maintaining an unlawful sexual relationship with a child, with a circumstance of aggravation, one count of rape, and three counts of indecent treatment of a child, under 16, under 12, under care. The appellant, who was the complainant's step-grandfather, was alleged to have committed these offences against the complainant when she was aged between six and 14 years old. The legal issues in the case were whether the trial judge erred in not discharging the jury, whether the verdict of guilty on the count of rape was unreasonable or insupportable, whether the verdict that the complainant was "under care" of the appellant at the time of two of the indecent treatment offences was unreasonable or insupportable, whether the trial judge erred in failing to adequately instruct the jury about the use of evidence of uncharged acts, whether the propensity evidence should have been rejected, and whether the sentence was manifestly excessive.

The court found that the trial judge did not err in not discharging the jury as the direction given was clear and it was inherently likely that the direction was understood and followed. The court found that it was open to the jury to find that the appellant was guilty of the count of rape, and that the jury were adequately instructed about the use that could be made of evidence of uncharged acts. The court found that the finding that the complainant was "under care" of the appellant at the time of two of the indecent treatment offences was not unreasonable or insupportable. The court found that the trial judge did not err in failing to adequately instruct the jury about the use of evidence of uncharged acts, and that the propensity evidence should not have been rejected. Finally, the court found that the sentence was not manifestly excessive.

The orders of the court were that the appeal is dismissed and the application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

LKJ gave evidence that the complainant spoke to her during sleepovers when they were in primary school:[88](a)she thought the topic at the complainant’s place one time, when she brought up that her grandfather had sexually abused her; she thought that was in late primary school or early high school; she could not recall how the topic came up;(b)“one occasion when he was giving her a piggyback, and while he was holding her, he was also touching her vagina, and that was the only situation where she’s given me specific details about what had happened”; she did not tell her any other stories;(c)“it wasn’t like a one-off thing … she said that he had done it - like, he had done it before on other occasions”; and(d)at the end of 2014 she was really upset and said there was a case about it.[88]AB 94-96.Evidence of Mr FAK Mr FAK gave evidence in his defence. He denied that any of the incidents occurred at all. The only contact he acknowledged was that in about 2006 when he would let the complainant slide down his knee, and while that was happening held her between her legs, touching her on her groin.[89] He said that in the pre-text call he referred to his wife being devastated if she found out he had touched the complainant on her groin.[90] However, he said in cross-examination that “Quite often, she would slide down my legs when we were watching TV in front of the family”.[89]AB 139.[90]AB 139 line 44. It may be noted that it was not put to the complainant during cross-examination[91] that she engaged in sliding down Mr FAK’s legs while he held her in the groin area. What was put by way of physical contact was specific, and limited to:[92](a)they would hug when greeting, leaving or going to bed; the complainant agreed with that;(b)he would kiss her on the cheek when saying hello and goodbye; she agreed with that;(c)she would sit on his lap when young; she could not recall but agreed it was possible when she was very young, say eight; (d)while sitting on his lap he would have his arms around her tummy or on her knee or thigh; she agreed with that; and (e)he would throw her around in the pool; she agreed with that.[91]Which took place over a year after the pre-text call.[92]AB 290-292.The pre-text call On 12 June 2014 a pre-text call with Mr FAK and the complainant was recorded. It was admitted that Mr FAK knew the complainant was calling to discuss allegations that he had touched her indecently.[93] The call records Mr FAK saying the following:[93]Formal admissions, AB 205.(a)“I know it was wrong. Alright? I know it was wrong, what happened”;(b)“… it was something that accidentally happened about eight years ago, and I regret it every day that … it happened. So I regret it, whatever happened, yes, every day”;(c)“And … I regret it, whatever’s happened. yes. And I can’t, the thing is, I can’t change it now darling. I just can’t change it. And I can’t do anything about it”;(d)the complainant asked if her grandmother knew about her, to which he replied; “No. No. Because Nana would be devastated”;(e)the complainant asked “why did you do it”, to which Mr FAK replied: “because I don’t know. I don’t know darling. I really don’t know. And that’s why I want to try and put it behind me, but if it becomes a real issue … well, I’ll just move away”;(f)“I’ve apologised for what I’ve done but I can’t do anything about it. I can’t take it back. … It’s something I’ve regretted happening”;(g)the complainant became more specific in her questions:“[complainant]: “Well why did you do it so many times?[Mr FAK]: I do not know.[complainant]: Like there was the car incident, there was and why like why did you keep doing it?[Mr FAK]: I don’t know.”(h)the expressions of regret and apologies were repeated, and then:“[complainant]: I don’t know why you had to go that far and actually touch my private part. I don’t understand.[Mr FAK]: Nor do I.”

Decision

Reasons for decision

I am unpersuaded that the sentence imposed in this case is manifestly excessive, particularly in light of HAN, R v C and WAH.Conclusion For the reasons expressed above, I would dismiss the appeal, and refuse the application for leave to appeal against the sentence. I propose the following orders:1.The appeal is dismissed.2.The application for leave to appeal against sentence is refused. PHILIP McMURDO JA: The evidence at the trial and the arguments in this court are set out thoroughly in the judgment of Morrison JA. I agree with his Honour’s conclusions on the appeal against the convictions save for that on the question of whether the offences in counts 4 and 5 were committed in the circumstance that the appellant had the complainant under his care. The first of the grounds of appeal, as they were ultimately argued, was that the jury should have been discharged because of the evidence from a preliminary complaint witness which referred to similar conduct by the appellant towards the complainant’s sister. Absent a direction from the trial judge, the evidence was clearly prejudicial to the appellant and conducive to a miscarriage of justice. But her Honour gave the direction which Morrison JA has set out at [39]. The jury was told that they had to disregard the evidence entirely and were reminded that the complainant had not said anything to that effect in her evidence. As a general rule, appellate courts should assume that juries understand and follow the directions they are given by trial judges.[151] There is nothing in the present case which displaces that assumption. The direction was clear and explained to the jury why they were to disregard the evidence. It is inherently likely that this direction was understood and followed. There was no risk of a substantial miscarriage of justice from the judge’s refusal to discharge the jury.[151]Gilbert v The Queen (2000) 201 CLR 414, 420 [13]. For the reasons given by Morrison JA, it was open to the jury to find that the appellant was guilty of count 2, the offence of rape, it being open to them to conclude that there had been penetration. Again for the reasons given by Morrison JA, the jury were adequately instructed about the use that could be made of evidence of uncharged acts. And I agree also with his Honour’s reasons for disposing of what he describes as grounds 7 and 8.Was the complainant under the applicant’s care? As the trial judge remarked when sentencing the appellant, he was regarded as a trusted family member and effectively as a grandparent. The complainant’s family, by which I mean the complainant, her parents and her siblings, lived in the country and far from the house near Brisbane where the appellant and the child’s grandmother lived. The evidence of the complainant was that about twice a year, the appellant and her grandmother visited the complainant’s family and again about twice a year, the complainant’s family would visit them at their house near Brisbane. The complainant’s family would spend every Easter with the appellant and the grandmother. Count 4 occurred during one of the Easter holidays and count 5 during one of the visits to the appellant’s house.

Ratio Decidendi

Legal Principle Established

This ground of appeal fails.Ground 3 – finding of penetration on count 2 The contention on appeal was that the complainant’s evidence revealed sufficient uncertainty about whether penetration had occurred that it was not open to the jury to be satisfied beyond reasonable doubt of Mr FAK’s guilt. The complainant’s evidence is summarised in paragraph [11] above. The way she expressed what was done was that: he “fingered” her; that he was “fingering” her; he “didn’t get that far because I was young”, and she said she “didn’t know people could put their fingers up there”; she “was so tiny and he couldn’t really so he was just ... playing there”; and he had put his finger “where you … pee” and it hurt. That evidence was, in my view, sufficient of itself to enable the jury to draw the conclusion that penetration had occurred. However, when one has regard to what the complainant meant when she used the phrase “finger” or “fingering”, the position is even stronger. At several points of her interview the complainant drew a distinction between touching in the sense of putting his hand on her vagina or vaginal area, and fingering:(a)“Just like fingering. Like he didn’t get far because I was young and I didn’t know stuff could even go up there. Like didn’t know, people put their fingers up there.”;[112](b)“Like he still put his hand in my [INDISTINCT]. He was, yeah. He wasn’t actually like fingering. He just had his hand like on my …”;[113](c)“ … I think he did have his hand there for a little bit and then he just went basically just down the top of my pants and, and touched my private part. He didn’t actually get, finger or anything. He just had it there.”;[114] and(d)as to being touched on her private parts, and asked to explain where he was touching: “I just remember the hand being there … just remember it being there … Well just on top there, on, he wasn’t actually fingering up.”[115][112]AB 222 lines 13-15.[113]AB 229 lines 38-40.[114]AB 230 lines 55-58.[115]AB 231 lines 5-14. In context the jury were entitled to understand the complainant as using the phrase “finger” or “fingering” to refer to an act where penetration occurred, as opposed to touching which was only on the surface. In my view, it was open to the jury to find that the complainant’s evidence on count 2 was that the act involved digital penetration of her vagina. This ground of appeal fails.Ground 4 – “under care” for counts 4 and 5 The Bench book refers to what “under care” means:[116]“[it] is an ordinary English expression. It means at the time alleged the defendant was responsible for the control and supervision of the child. It does not require any formal legal process to have occurred such as an order for custody. In determining that the jury should take into account such things as the age of the child, how the child came to be with the defendant and why the child was with the defendant.”[116]Chap 119, footnote 8.