R v FAX

Case [2020] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAX [2020] QCA 139

PARTIES:

R
v
FAX
(appellant)

FILE NO/S:

CA No 37 of 2020
DC No 67 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Childrens Court at Southport – Date of Conviction: 4 February 2020 (Kent QC DCJ)

DELIVERED ON:

26 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2020

JUDGES:

Sofronoff P and Boddice and Ryan JJ

ORDERS:

1.   The appeal be allowed.

2.   The verdict of guilty be set aside.

3.   There be a retrial on the count of rape.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant was found guilty of one count of rape after a judge alone trial – where the appellant was sentenced to supervision for a period of two years under the Youth Justice Act 1992 (Qld) – where a conviction was not recorded – where the appellant appeals his conviction on the ground that the trial Judge erred in law, failing to or failing to fully and adequately apply the relevant principles of law and procedure applicable to the trial under the Childrens Court Act 1992 (Qld) – where the trial Judge failed to record in the reasons that there was no obligation on the appellant to give evidence at trial and that no adverse inference could be drawn from his decision not to do so – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant appeals his conviction on the ground that the verdict of the trial Judge was unreasonable and cannot be supported having regard to the evidence – where there were a number of matters which called into question the reliability and credibility of the complainant – whether it was open to the trial Judge to be satisfied beyond reasonable doubt that the appellant raped the complainant – whether the verdict of the trial Judge was unreasonable

Childrens Court Act 1992 (Qld), s 23
Criminal Code (Qld), s 615C, s 615D
Youth Justice Act 1992 (Qld), s 193

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited
R v R, R and R, LJ [2008] SASC 35, considered
R v Schneiders[2007] QCA 210, cited

COUNSEL:

A J Kimmins for the appellant
D Balic for the respondent

SOLICITORS:

PHV Law Solicitors and Consultants for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Boddice J.

  2. BODDICE J:  On 4 February 2020, a judge of the Childrens Court of Queensland found the appellant guilty of one count of rape, after a judge alone trial.

  3. On 5 February 2020, the appellant was sentenced to supervision for a period of two years under…

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Details
AGLC
R v FAX [2020] QCA 139
Case
[2020] QCA 139
Decision Date

CaseChat Overview and Summary

In the case of R v FAX, the appellant challenges his conviction for one count of rape, stemming from an incident that occurred when he was 14 years old. The trial was conducted before a judge alone in accordance with the Childrens Court Act 1992 (Qld), and the appellant was sentenced to two years of supervision under the Youth Justice Act 1992 (Qld). The appellant argues that the trial Judge erred in law by failing to properly apply the relevant principles of law and procedure, particularly in not addressing the absence of a requirement for him to give evidence and the inability to draw adverse inferences from his silence. Additionally, he contends that the verdict was unreasonable and unsupported by the evidence, particularly considering the reliability and credibility of the complainant.

The court was required to determine whether the trial Judge’s failure to address these issues constituted a miscarriage of justice and whether the verdict was unreasonable given the evidence presented. The appellant's appeal hinged on two main points: first, the trial Judge's omission to discuss the principles relevant to the appellant's silence and the absence of an obligation to testify, and second, whether the verdict was reasonable and supported by the evidence, especially in light of the complainant’s reliability and the presence of inconsistencies in her testimony.

The court found that the trial Judge did not adequately address the principles of law applicable to the appellant's silence and the consequences of not testifying. This omission is significant because it failed to provide the appellant with a clear understanding of his rights and the implications of not participating in the trial. Additionally, the court considered the evidence and found that the inconsistencies in the complainant's testimony and other factors raised substantial doubts about the reliability of her account. The court concluded that the trial Judge’s failure to sufficiently address these issues and the unreasonableness of the verdict warranted a retrial.

The appeal was allowed, the verdict of guilty was set aside, and a retrial on the count of rape was ordered. This decision underscores the importance of thorough judicial reasoning, especially in trials involving young defendants, to ensure that all relevant legal principles are appropriately considered and applied.

Orders

Orders of the court

1. The appeal be allowed.

2. The verdict of guilty be set aside.

3. There be a retrial on the count of rape.

Background

Background to the litigation

The appellant appeals his conviction. He relies on two grounds:(1)The learned trial Judge erred in law, failing to or failing to fully and adequately apply the relevant principles of law and procedure applicable to the trial under section 23 of the Childrens Court Act 1992.(2)The verdict of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence.Background The appellant was born on 12 February 2001. He was aged 14 years at the time of the offence and 18 years at the date of his conviction and sentence. The complainant was a female aged 13 years at the time of the offence. She and the appellant are cousins by marriage. The offence of rape was committed between 29 January 2016 and 1 February 2016. The act was particularised as digital penetration of the complainant’s vagina.Evidence On 17 May 2018, the complainant approached Darren Lawrence, the school chaplain. She wanted to tell him something but asked about his reporting obligations. On 28 May 2018, the complainant came to Lawrence’s office with another student. The complainant again clarified his reporting requirements. The complainant said she felt she needed to tell him something because she needed support for it and she knew a relative could get into trouble. The complainant told Lawrence that she had been at her uncle’s place at a party. The adults were outside and the complainant had fallen asleep. She woke up and her cousin, FAX, had his hand down her pants. FAX then dragged her into the bathroom and attempted to have intercourse with her. The complainant said she was able to push him off and ran outside to the adults but did not say anything to anyone. Lawrence did not ask any questions but made notes during the conversation. His training was not to ask any questions about matters concerning sexual assault. He explained to the complainant that he needed to pass the information on and discussed the reporting process through the school system. Lawrence immediately had a verbal conversation with the school principal. He prepared a student protection report within 30 minutes of speaking to the complainant. He organised support for the complainant in the way of counselling and contacted the complainant’s mother to advise of the disclosure. Lawrence provided a statement to police on 13 November 2019. That statement contained quotes of his actual conversation with the complainant. The statement recorded the following account by the complainant:“I was at my Uncle WH’s house in Brisbane. My cousin, FAX, who is WH’s partner’s grandson, about 15 years old, was at the house. The adults were outside and I was asleep on a bed inside when I woke to FAX with his hand down my pants. He then dragged me into the bathroom and attempted to have intercourse with me but I was able to push him off and run out of the bedroom and outside to where the adults were.” Lawrence said that, when speaking to the complainant, he wrote down specific words such as the appellant’s name, the uncle’s name and age. He made full notes whilst preparing his official report. He did not ever show his report or statement to the complainant. If he thought he had misunderstood something, he would have sought clarification. His obligation is to record as best as possible the complaint.

Evidence

Evidence Before The Court

The offence of rape was committed between 29 January 2016 and 1 February 2016. The act was particularised as digital penetration of the complainant’s vagina.Evidence On 17 May 2018, the complainant approached Darren Lawrence, the school chaplain. She wanted to tell him something but asked about his reporting obligations. On 28 May 2018, the complainant came to Lawrence’s office with another student. The complainant again clarified his reporting requirements. The complainant said she felt she needed to tell him something because she needed support for it and she knew a relative could get into trouble. The complainant told Lawrence that she had been at her uncle’s place at a party. The adults were outside and the complainant had fallen asleep. She woke up and her cousin, FAX, had his hand down her pants. FAX then dragged her into the bathroom and attempted to have intercourse with her. The complainant said she was able to push him off and ran outside to the adults but did not say anything to anyone. Lawrence did not ask any questions but made notes during the conversation. His training was not to ask any questions about matters concerning sexual assault. He explained to the complainant that he needed to pass the information on and discussed the reporting process through the school system. Lawrence immediately had a verbal conversation with the school principal. He prepared a student protection report within 30 minutes of speaking to the complainant. He organised support for the complainant in the way of counselling and contacted the complainant’s mother to advise of the disclosure. Lawrence provided a statement to police on 13 November 2019. That statement contained quotes of his actual conversation with the complainant. The statement recorded the following account by the complainant:“I was at my Uncle WH’s house in Brisbane. My cousin, FAX, who is WH’s partner’s grandson, about 15 years old, was at the house. The adults were outside and I was asleep on a bed inside when I woke to FAX with his hand down my pants. He then dragged me into the bathroom and attempted to have intercourse with me but I was able to push him off and run out of the bedroom and outside to where the adults were.” Lawrence said that, when speaking to the complainant, he wrote down specific words such as the appellant’s name, the uncle’s name and age. He made full notes whilst preparing his official report. He did not ever show his report or statement to the complainant. If he thought he had misunderstood something, he would have sought clarification. His obligation is to record as best as possible the complaint. The complainant’s mother was told by Lawrence that something of a sexual nature had happened to the complainant in the past. She told the complainant’s sister, who spoke to the complainant in early June 2018, at the request of her mother. The complainant’s sister told the complainant she was proud of her for speaking up and asked the complainant to tell her in her own words, if she felt comfortable. In response, the complainant said she had been sitting on a couch, watching a movie. She woke with the appellant’s hand in her pants. The complainant’s sister estimated the conversation took five to 10 minutes. It took a while to get going because it was obviously quite an emotional time.

Decision

Reasons for decision

In cross-examination, WH accepted he was not watching the children 24/7 that afternoon or evening. He did walk past them many times. When he observed them snuggled together they were both awake. It was in the afternoon. He never saw them asleep at any time. He thought he was the only one who was taking that much notice. He recalled seeing the complainant and the appellant on the sofa when it was dark.Judgment In his reasons for judgment, the trial Judge specifically observed that, as it was a criminal charge, the onus was on the prosecution and the standard was beyond reasonable doubt. Further, the case was one where it was appropriate to direct himself in terms of a Robinson direction:“[T]hat is, that because of some of the features of the case and they include the delay, in circumstances that I will further explain, and also to some extent the inconsistencies, or perhaps it is best to say some of the more vague peripheral areas of the Complainant’s evidence, it is appropriate to approach the matter on the basis of what is often referred to as a Robinson direction – that is, the warning as to how to approach the case where the evidence of the witness requires a special warning.” The trial Judge further observed that he should only act on the complainant’s unsupported evidence:“[I]f after considering it with the warning in mind – that is, the warning to scrutinise her evidence with great care before arriving at a conclusion of guilt – I am nevertheless convinced, taking into account it and all of the other evidence, that I am convinced of its truth and accuracy.” The trial Judge recorded other matters of law, including that as evidence was pre-recorded pursuant to section 21AK of the Criminal Code; he should take into account the way in which the Code directs that evidence of affected children should be approached, namely, that they were routine practices; that he was not to draw any inference as to the defendant’s guilt because of those legal measures; and that the probative value of the evidence was neither increased nor decreased by those measures and was not to be given any greater or lesser weight as a consequence of those routine measures. The trial Judge also recorded that he was to take a cautious approach to preliminary complaint type evidence. That was evidence of the fact of the complaint, rather than evidence of the truth of its contents. Its use is limited to the purpose of either forming a buttress to the complainant’s credit, because of consistency of account, or damage to the complainant’s credit because of inconsistency. After summarising in detail the evidence of the witnesses, the trial Judge recorded that the parties agreed that the real issue in the case was whether the episode occurred, rather than issues of consent or mistake of fact. The trial Judge recorded that the defence case was that the complainant’s evidence was weak and tenuous and contained errors such as the starting time of the party and the presence of younger twin cousins on that day. The complainant was also wrong about only watching movies after dinner and inaccurate about the clothes she was wearing that day.

Ratio Decidendi

Legal Principle Established

The respondent submits that inconsistency in a preliminary complaint is a common feature, consistent with human frailty. Whilst Lawrence recorded in his notes that the incident occurred in a bedroom, the complainant never reported telling him the location of the incident, but reported consistently with Lawrence’s account that he did not ask for further detail. The lack of graphic detail did not detract from the complainant’s consistent account of the appellant having stuck his hands down her pants. There was also support from other witnesses as to the presence of a blanket, and of the two being together on a couch, at a time leading up to the offence.ConsiderationGround one Section 23 of the Childrens Court Act 1992 provides that issues of law and fact are to be decided by a judge as if the trial were a trial on indictment in the Supreme Court. No further guidance is given in that Act as to the method by which a judge of the Childrens Court is to decide those issues. To that extent, section 23 may be contrasted with the provisions of section 615C of the Criminal Code, which contains a specific requirement for a judge in a trial without a jury to identify in reasons the principles of law applied by that judge and the findings of fact relied upon in determining whether the defendant is guilty or not guilty. Whilst that provision of the Code specifically does not apply to a trial on indictment in the Childrens Court,[27] the contents of that section are consistent with the common law obligation on any judicial officer to give reasons. That requirement includes obligations to state the relevant principles of law being applied, and the factual findings adopted in the application of those principles.[27]Criminal Code, section 615D. The duty to give reasons operates as a safeguard to the interests of the accused and the public interest generally.[28] As a matter of general principle, the giving of reasons should include an identification of the principles of law and the findings of fact, together with a statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that it reached”.[29][28]AK v Western Australia (2008) 232 CLR 438 at [104] per Heydon J.[29]AK v Western Australia per Gummow and Hayne JJ at [44], citing with approval Fleming v The Queen (1998) 197 CLR 250 at [28]. Whilst no particular formula is necessary, reasons given in a judge only trial should contain details of the evidence admitted at trial, an explanation as to the use made of that evidence, the inferences drawn from that evidence and the judge’s approach to the evidence, with an appropriate identification of the relevant principles of law to be applied in assessing the evidence and in determining whether the prosecution had established the defendant’s guilt of each offence beyond reasonable doubt. The form and content of reasons will depend upon the issues in dispute at trial. However, the observations of Gray J in R v R, R and R, LJ[30] are apposite:“It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the reasons for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.”[30][2008] SASC 35 at [21].