R v Faz

Case [2021] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAZ [2021] QCA 16

PARTIES:

R
v
FAZ
(appellant)

FILE NO/S:

CA No 116 of 2020
DC No 98 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


Childrens Court at Beenleigh – 1 May 2020 (Chowdhury DCJ)

DELIVERED ON:

12 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2020

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where a judge found the appellant guilty of indecent treatment of a child under 12 under care – where the appellant appeals against the verdict of guilty on the ground that it was unreasonable – where the appellant submitted the trial judge ought to have had a reasonable doubt as to the appellant’s guilt – whether the trial judge was bound to “accept the uncontested evidence of the witness” – whether there was an error in particular findings of fact or otherwise in the reasoning of the trial judge – whether the appeal should be allowed

Criminal Code (Qld), s 668D, s 668E
Evidence Act 1977 (Qld), s 17
Youth Justice Act 1992 (Qld), s 116

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, cited
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited
R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209, cited
R vMRW (1999) 113 A Crim R 308; [1999] NSWCCA 452, cited
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19, cited
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited

COUNSEL:

H Fong for the appellant
D Nardone for the respondent

SOLICITORS:

Beaudesert Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  A judge found the appellant guilty of indecent treatment of a child under 12 and under care.  He was aged between 12 and 14 at the date of the offence.  He appeals against that verdict on the ground that it was unreasonable and could not be supported by the evidence.  The appellant’s basis for that ground is narrowly confined and so the facts of the case can be related succinctly.

  2. The complainant was a seven year old girl whose mother used to work at night. She had a twin sister and an older brother. The appellant’s family and the complainant’s family were friends. On a particular night when the complainant’s mother was working, she engaged the appellant and a friend of his, Rob,[1] to babysit her children. According to the complainant’s evidence, she and her sister went to bed. The complainant was “half asleep” and was lying facing the wall. She then felt the appellant in her bed. He “grabbed my hand and … was like put it down his pants”. She said that, at first, she thought that she was touching the appellant’s wallet and…

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AGLC
R v Faz [2021] QCA 16
Case
[2021] QCA 16
Decision Date

CaseChat Overview and Summary

In the matter of R v Faz, the appellant was found guilty of indecent treatment of a child under 12 under his care. The appellant appealed against the verdict, arguing it was unreasonable and that the trial judge should have had reasonable doubt as to his guilt. The case involved the complainant, a young girl, alleging the appellant placed her hand on his penis while babysitting her and her siblings. The trial judge found the complainant's account credible and accepted it as sufficient to convict the appellant beyond reasonable doubt.

The primary legal issue was whether the trial judge should have had reasonable doubt as to the appellant's guilt, and whether there was any error in the judge's findings of fact or reasoning. The court assessed the sufficiency and quality of the evidence and whether there was a significant possibility that an innocent person had been convicted. The court noted that the primary judge had seen and heard the witnesses, and the evidence contained discrepancies and inadequacies. However, the court found that the primary judge was correct in rejecting the evidence of the appellant's friend, [Z], as unreliable, and in accepting the complainant's evidence as credible and sufficient to convict.

The court concluded that the appeal should be dismissed, as the verdict was not unreasonable and was supported by the evidence. The trial judge was not bound to accept the uncontested evidence of the witness and had correctly evaluated the evidence presented. The court found no error in the trial judge's findings of fact or reasoning, and the verdict of guilty was upheld. The final orders of the court were to dismiss the appeal.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The offence was charged as having taken place on a date unknown between 13 May 2014 and 14 May 2016, and was particularised as placing the complainant’s hand onto the appellant’s penis.Evidence The complainant first spoke to police on 23 March 2019. She told police that about three or four years prior, when her mum was away, the appellant and his friend, [Z], would babysit her and her two siblings, a twin sister and an older brother. On one of these occasions, in winter, when the complainant was in her bed, the appellant grabbed her hand and put it down his pants. She described herself as half asleep and said it was really dark. She first thought it was his wallet he was making her touch, but then realised it was his “thingy”.[27] The complainant said she flinched her arm to try and get away. At that time, the appellant stopped and left the room.[27]AB195/40. The complainant said she told her sister the next morning, but did not tell her parents because she was scared about how they would react. The complainant shared the bedroom with her sister. She thought she was about seven years old at the time. The complainant described the appellant and his friend as aged about 13 years at that time. Her family were friends with the appellant’s mother. The appellant would walk home with them from school. The complainant said the two of them were babysitting the complainant and her siblings on the night in question. The complainant said her sister fell asleep straight away. She thought the appellant was lying in her bed and his friend was in her sister’s bed. They were helping them go to sleep. The complainant thought the appellant took his pants off before he hopped into her bed, because she heard him grab something off the floor when he hopped out of bed and heard a sound like putting his pants back on before he walked out of the room.[28][28]AB204/15. The complainant said she was facing the wall in her bed when the appellant grabbed one of her hands, that was behind her, with his hand. The appellant did not say anything. She first thought he had made her hand touch his wallet. The complainant said her hand was touching the appellant’s skin. She first thought it was a wallet because it was hard and she thought it was leather. The complainant then realised it was too soft to be leather. It was also a bit squishy like a wallet and a bit hard, but not too hard. Her hand touched the appellant’s “private bit” for about 10 seconds. She did not know another word for that part but said boys use it for “peeing”.[29][29]AB206/50. The complainant said she tried to move her hand away slowly so that the appellant would not notice because she was scared of what he would do. Once the appellant realised she was moving, he stopped and hopped out of the bed. The very next thing the complainant recalled was her mum came home. The complainant remembered her saying for them to get out and saying thank you for babysitting the children. The appellant and his friend laughed as they left the room. The complainant thought the friend knew about it because he was laughing as well.

Decision

Reasons for decision

The appellant declined to give or call evidence at the conclusion of the Crown case.Primary decision The primary Judge recorded that the prosecution had particularised the unlawful and indecent dealing as being occasioned by the appellant moving the complainant’s hand into his pants and placing it on his penis. The primary Judge then set out, in detail, the evidence of the respective witnesses. After setting out the elements of the offence and the relevant principles, the primary Judge recorded specific directions in relation to the use of preliminary complaint witnesses, the importance of delay in the complaint being brought to the attention of police and features relevant to the reliability of the complainant. The primary Judge found that the combination of those features, together with the delay, meant it would be dangerous to convict on the complainant’s evidence alone unless, after scrutinising with great care, the primary Judge was satisfied beyond reasonable doubt of its truth and accuracy. After outlining the closing submissions of both the Crown and the defence, the primary Judge found that the complainant was an intelligent, articulate girl with a good memory of the events. Her description of how she was lying in bed when she was grabbed by the appellant had “a clear ring of truth to it” although there was an inconsistency in an aspect of her account, namely, whether the defendant was wearing shorts at the time he was in the bed or had taken them off before getting into bed. The primary Judge also found that the evidence from the complainant’s sister was generally consistent with what the complainant said happened, as was the evidence of the complainant’s friend, [H], although the evidence of the complainant’s friend, [G], was at odds with those other preliminary complaint witnesses. The conversation the complainant had with her mother was also generally consistent with the complainant’s account. Little weight was, however, to be placed on the meeting with the guidance counsellor as it essentially involved the complainant’s mother relaying to the counsellor the complainant’s complaint to her that morning. The primary Judge observed that the evidence of [Z] posed the most problems for the prosecution case. The primary Judge accepted that [Z] was endeavouring to tell the truth but noted that he was, and remains, a close friend of the appellant. Importantly, on his evidence, neither he nor the appellant had on any occasion been in the girls’ bedroom. He also specifically denied that he had ever been at the house babysitting late at night or that he and the appellant had ever been caught by the complainant’s mother coming out of the bedroom, giggling and laughing. The primary Judge found that [Z]’s evidence was contradicted on two critical issues by the evidence of the complainant’s mother. First, as to whether the boys ever babysat the children late at night. Second, as to whether the boys had been observed coming out of the girls’ bedroom when the mother came home. The primary Judge found the complainant’s mother’s evidence credible and convincing, with a ring of truth about it. He preferred that evidence over [Z]’s evidence, noting that there was no reason for [Z] to have remembered the event.

Ratio Decidendi

Legal Principle Established

The respondent submits that the primary Judge did not reverse the onus of proof. Whilst the prosecutor could not challenge [Z]’s credit, there was evidence given by other witnesses which called into doubt the reliability of [Z]’s account. [Z] could not be correct in his evidence that there was never an occasion when he and the appellant were in the complainant’s bedroom. That provided a foundation for the primary Judge to reject [Z]’s evidence as unreliable. Once that rejection took place, there was no reason why the primary Judge could not accept the complainant’s account as credible and reliable and sufficient to found proof beyond reasonable doubt.Consideration The sole ground of appeal is that the verdict of guilty was unreasonable and cannot be supported by the evidence. In determining that ground, this Court must undertake its own independent assessment of both the sufficiency and quality of the evidence and determine whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, it would be dangerous in the circumstances to permit the verdict of guilty to stand.[34][34]SKA v The Queen (2011) 243 CLR 400 at [14]. In undertaking that assessment, this Court must give due regard for the benefit the primary Judge had to see and hear the witnesses. If, however, the evidence contained discrepancies, inadequacies, was tainted or otherwise lacked probative force in such a way as to lead this Court to conclude that, even allowing for the advantages enjoyed by the primary Judge, there is a significant possibility that an innocent person has been convicted, the verdict of guilty is to be set aside as unreasonable.[35][35]Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12. Central to the appellant’s contention that the verdict was unreasonable and cannot be supported by the evidence is the evidence of [Z]. The primary Judge accepted [Z] “was endeavouring to tell the truth” in his evidence. The primary Judge correctly observed there was other evidence which called into doubt the reliability of [Z]’s evidence in two material respects. First, that there had never been an occasion when he and the appellant had babysat the girls late at night, such that they had gone to bed. Second, that on no occasion had he or the appellant been in the girls’ bedroom. The evidence of the complainant’s mother directly called into question the reliability of that first aspect of [Z]’s evidence. She gave clear evidence of an occasion when the appellant and [Z] undertook babysitting of her children at least until 9 pm that night, which was past the girls’ bedtime. The evidence of the complainant’s mother and the complainant’s brother called into question the accuracy of that second aspect of [Z]’s evidence. The complainant’s mother recounted an occasion when she had observed the boys leaving the girls’ bedroom, giggling and laughing, albeit in circumstances where, at the time, she did not see it as giving rise for any concern. The complainant’s brother gave evidence that he had observed the appellant and [Z] in the girls’ bedroom, albeit in circumstances where, whilst they were lying on the bed, it was not bedtime and the girls were standing up and laughing with the boys.