R v FAR

Case [2018] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAR [2018] QCA 317

PARTIES:

R
v
FAR
(appellant)

FILE NO/S:

CA No 257 of 2017
DC No 339 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 10 May 2017 (Horneman-Wren SC DCJ)

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2018

JUDGES:

Philippides JA and Boddice and Bond JJ

ORDERS:

1.   The appeal be allowed.

2.   The jury’s verdicts of guilty on Counts 1, 2, 5, 6, 9, 11 and 12 be set aside.

3.   A new trial be ordered on each of those Counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was found guilty after trial of one count of maintaining an unlawful sexual relationship, one count of rape and other sexual offences against the same child, and was found not guilty of three further counts of rape and two counts of indecent treatment of a child under 16 – where in in respect of each count in which verdicts of guilty were returned by the jury, the complainant had given consistent accounts, both in her interviews with police and in her evidence at trial, sufficient to support a conclusion that the appellant was guilty of each offence, beyond reasonable doubt – whether the verdicts of the jury were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the evidence placed before the jury did not merely include evidence of acts which were uncharged acts – where that evidence included evidence of acts which had been the subject of acquittals at the appellant’s previous trial – where the direction from the trial judge did not expressly direct the jury that if the jury accepted the complainant’s account in respect of those events, the jury could not use that account as evidence that those events had in fact occurred, thereby questioning or discounting the effect of those acquittals, bolstering the complainant’s credibility – where there was good reason for the jury to closely scrutinize the complainant’s evidence – where in circumstances where there was good reason for a jury to closely scrutinize the complainant’s evidence, it cannot be said that the failure to direct the jury to the effect that the appellant had been acquitted of those offences and that they could not use that evidence in a manner inconsistent with the full benefit of those acquittals, did not deprive the appellant of a fair chance of acquittal on the counts he was ultimately found guilty on – whether there was a miscarriage of justice

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
R v Baden-Clay (2016) 258 CLR…

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AGLC
R v FAR [2018] QCA 317
Case
[2018] QCA 317
Decision Date

CaseChat Overview and Summary

The appellant appeals his convictions for various sexual offences against a child, including maintaining an unlawful sexual relationship, rape, and indecent treatment. The jury found the appellant guilty on some counts but acquitted him on others. The appellant argues that the verdicts were unreasonable and that the trial judge erred in not adequately directing the jury on the use of evidence related to previous acquittals. The court must determine whether the verdicts were unreasonable and whether there was a miscarriage of justice due to the trial judge’s direction.

The court considered whether the jury's verdicts were unreasonable, given the evidence presented. The court noted that the jury acquitted the appellant on some counts while convicting him on others, indicating that they carefully assessed the complainant's evidence. The court held that the jury's verdicts were not unreasonable as they were open to the jury to be satisfied beyond reasonable doubt on some counts while harbouring reasonable doubt on others. Furthermore, the court found that the trial judge's direction to the jury, which allowed them to consider the evidence without improperly weighting the acquittals, did not result in a miscarriage of justice. The jury's ability to acquit on some counts while convicting on others demonstrated their proper use of the evidence.

The court found that the jury's verdicts were not unreasonable, and the trial judge's direction did not occasion a miscarriage of justice. Therefore, the appeal was dismissed except for the counts on which the jury's verdicts were set aside, and a new trial was ordered for those counts. The court's decision highlights the importance of allowing juries to assess the credibility of complainants and the need for careful consideration before setting aside their verdicts.

Orders

Orders of the court

1. The appeal be allowed.

2. The jury’s verdicts of guilty on Counts 1, 2, 5, 6, 9, 11 and 12 be set aside.

3. A new trial be ordered on each of those Counts.

Background

Background to the litigation

The appellant appeals his convictions. The grounds of appeal are that the verdicts are unreasonable and cannot be supported having regard to the evidence, and that the trial judge erred in giving an inadequate direction as to the use of evidence related to previous acquittals, thereby occasioning a miscarriage of justice.Background The offences were all committed between 30 November 2009 and 30 September 2013. The complainant in each of the offences was a female child born on 4 March 1999. She lived with her mother and the appellant at various addresses during the period, the subject of the offences. The appellant was born on 19 April 1975. At the time of the offences, he was in a relationship with the complainant’s mother.Counts Count 1, alleged that between 30 November 2009 and 30 September 2013, the appellant carried on an unlawful sexual relationship with the complainant. The particularised acts were the acts relied upon as constituting Counts, 2, 4-9 and 11-14, as well as further sexual conduct. Count 2, alleged that between 30 November 2009 and 17 September 2010, the appellant, whilst alone with the complainant in a vehicle, deliberately exposed his penis to the complainant. Count 4, alleged that between 17 August 2010 and 14 July 2012, the appellant lay with the complainant and rubbed his groin area against her groin area and told her he wanted to “fuck her”. Count 5, alleged that between 8 January 2012 and 19 July 2012, the appellant put his hands on the complainant’s bottom whilst she was on a treadmill. Count 6, alleged that between 18 July 2012 and 1 February 2013, the appellant rubbed a dildo against the complainant’s bottom and between her legs. Count 7, alleged that between 23 January 2013 and 6 July 2013, the appellant digitally penetrated the complainant’s genitalia without her consent, after pulling the complainant into a shower with him. Count 8, alleged that on the same occasion as Count 7, the appellant masturbated in front of the complainant. Count 9, alleged that between 23 January 2013 and 6 July 2013, the appellant touched the complainant’s breasts indecently. Count 11, alleged that between 30 November 2009 and 6 July 2013, the appellant digitally raped the complainant when they were both sitting on a couch. Count 12, alleged that between 23 January 2013 and 6 July 2013, the appellant touched the complainant’s breasts. Count 13, alleged the appellant put his penis in the mouth of the complainant without her consent, on the same occasion he touched the complainant’s breasts, the subject of Count 12. Count 14, alleged the appellant, on the same occasion as the offences in Counts 12 and 13, digitally penetrated the complainant’s vagina without her consent.EvidenceAdmissions A number of admissions were read to the jury. Those admissions were that the complainant was born on 4 March 1999, that her biological parents are KDP, and RGN; that the complainant’s mother held a lease at 30 GAT Road, NNT, between 29 April 2008 and 3 August 2009; at 83 CQT Street, MMP between 3 August 2009 and 10 March 2010; and at 79 CQT Street, MMP between 10 March 2010 and 17 September 2010, but moved to that address in about December 2009; that the complainant’s mother and the appellant held a lease at 3 WSQ Street, HEV between 17 August 2010 and 14 January 2012 and at 8 SKN Street, BLN between 8 January 2012 and 19 July 2012; that the complainant’s mother and the appellant resided at 303 BEN Street, IWC, the location at ZND’s Diner between 18 July 2012 and 24 January 2013; that the complainant’s mother and the appellant held a lease at 10 GLR Street, HEV between 23 January 2013 and 6 July 2013; and at 33 TNH Street, HPI between 1 July 2013 and 2 May 2014; and that the appellant had an uncircumcised penis with some dark pigmentation on multiple areas of the foreskin, visible to the naked eye.Complainant

Evidence

Evidence Before The Court

Count 12, alleged that between 23 January 2013 and 6 July 2013, the appellant touched the complainant’s breasts. Count 13, alleged the appellant put his penis in the mouth of the complainant without her consent, on the same occasion he touched the complainant’s breasts, the subject of Count 12. Count 14, alleged the appellant, on the same occasion as the offences in Counts 12 and 13, digitally penetrated the complainant’s vagina without her consent.EvidenceAdmissions A number of admissions were read to the jury. Those admissions were that the complainant was born on 4 March 1999, that her biological parents are KDP, and RGN; that the complainant’s mother held a lease at 30 GAT Road, NNT, between 29 April 2008 and 3 August 2009; at 83 CQT Street, MMP between 3 August 2009 and 10 March 2010; and at 79 CQT Street, MMP between 10 March 2010 and 17 September 2010, but moved to that address in about December 2009; that the complainant’s mother and the appellant held a lease at 3 WSQ Street, HEV between 17 August 2010 and 14 January 2012 and at 8 SKN Street, BLN between 8 January 2012 and 19 July 2012; that the complainant’s mother and the appellant resided at 303 BEN Street, IWC, the location at ZND’s Diner between 18 July 2012 and 24 January 2013; that the complainant’s mother and the appellant held a lease at 10 GLR Street, HEV between 23 January 2013 and 6 July 2013; and at 33 TNH Street, HPI between 1 July 2013 and 2 May 2014; and that the appellant had an uncircumcised penis with some dark pigmentation on multiple areas of the foreskin, visible to the naked eye.Complainant The complainant was interviewed by police on 18 May 2014 and on 6 November 2014. Those interviews, which were video recorded, were admitted pursuant to s 93A of the Evidence Act. In her initial interview, the complainant said she went to talk to police about a problem with her step-dad, the appellant, who had been sexually abusing her for quite a while. The complainant said she was no longer allowed to see her mother or go near her family. The appellant used to touch her in front of her mother but when she told her mother what was happening, she did not believe the complainant. The complainant first told her mother when she was aged about 11. They were at Queen Mary Falls on the border of Queensland and New South Wales. The complainant wanted a drink, but the appellant said no. When her mother obtained a drink for the complainant’s little sister, the complainant hit it out of her sister’s hand. She was then smacked over the face by her mother, and also smacked by the appellant who tried to pick her up by the breasts. The complainant started screaming and said ‘don’t touch my boobs’. The appellant dropped the complainant and ran off. The complainant said her mother asked what she had said and the complainant said he was touching her boobs; he had been doing so for ages, and she had been trying to tell her mother. The complainant’s mother spoke to the appellant and told the complainant to get into the car. Her mother said “do you know, he wants to jump off that cliff right now?” The complainant said “good, I hope he does”. When they got back home, her mother told the complainant’s father. He did not believe the complainant. The complainant said the appellant would always do something whenever somebody wanted him to do it, but there was a really bad side to him.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent further submits that evidence of the charges which had been the subject of acquittals at the earlier trial, was admitted for the appellant to achieve a forensic advantage in undermining the credit of the complainant. No further directions were sought by trial counsel in relation to the use of that evidence by the jury. In such circumstances, the trial judge was not bound to give a further direction that the appellant was acquitted. The trial judge expressly told the jury they could not use the evidence against the appellant at all. Such a direction afforded the appellant the full benefit of those acquittals. There was no real chance the appellant was deprived of acquittals on those counts. The jury’s acquittal on some counts and conviction on others, shows the jury did not need further direction as to the proper use of that evidence.ConsiderationUnreasonable verdict A determination of whether a jury’s verdict is unreasonable requires this Court to independently assess whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of each of the offences, beyond reasonable doubt.[46] The serious step of setting aside a jury’s verdict is immeasurable and not to be undertaken without the Court having particular regard to the advantage enjoyed by a jury, over this Court, which has not seen or heard the witnesses called at trial.[47][46]SKA v The Queen (2011) 243 CLR 400 at [21] - [22].[47]R v Baden-Clay (2016) 258 CLR 308 at 329 [65]. In undertaking this assessment, regard should also be had for the fact that a verdict of not guilty does not, of necessity, mean the jury found the complainant dishonest or unreliable. The jury may have accepted the complainant as reliable, but had a reasonable doubt as to the defendant’s guilt of the particular count.[48] As Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen,[49] stated:“In the case of sexual offences, of which there may be no objective evidence… [a] juror might consider it more probable than not, that a complainant is telling the truth but requires something additional before reaching a conclusion beyond reasonable doubt…[a] verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence, might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence, than about others.”Their Honours also noted that where a number of offences are alleged, it may appear to the jury that justice is met by convicting of some only.[48]R v SCS [2017] QCA 78 at [42].[49](2002) 213 CLR 606 at 617 [34].