R v FBH

[2024] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBH [2024] QCA 149

PARTIES:

R
v
FBH
(appellant)

FILE NO/S:

CA No 11 of 2024
DC No 478 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 27 April 2023 (Dearden DCJ)

DELIVERED ON:

16 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2024

JUDGES:

Mullins P and Boddice JA and North J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of one count of indecent treatment of a child under 16, under 12 – where the count was particularised as touching the area of the complainant’s vagina, with his finger/s, on the outside of her clothing – where the Crown led evidence of the appellant’s gradual touching of the complainant prior to the charged act – whether a miscarriage of justice was occasioned by the trial judge directing the jury that the uncharged occasions could be used as evidence of a sexual interest and a willingness to act on that sexual interest

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was convicted after trial of one count of indecent treatment of a child under 16, under 12 – where in closing address the prosecutor used the word “victim” – where the appellant contends the prosecutor impermissibly invited the jury to treat the evidence of the complainant as that of a “victim” of sexual violence – whether a miscarriage of justice occurred

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

D A Marley for the appellant
S L Dennis for the respondent

SOLICITORS:

Mansia Bovey & Company Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with Boddice JA.

2. BODDICE JA:  On 27 April 2023, a jury found the defendant guilty of one count of indecent treatment of a child under 16, under 12.

3. The appellant appeals his conviction on two grounds.  First, that a miscarriage of justice was occasioned by the trial judge’s directions to the jury, that prior occasions when the appellant had touched the complainant could be used as evidence of sexual interest by the appellant.  Second, that a miscarriage of justice was occasioned by the Crown prosecutor’s inappropriate closing address.

   Indictment

4. The count on the indictment concerned a female child who was aged 8 or 9 years old at the time of the offence.

5. The count was particularised as touching the area of the complainant’s vagina, with his finger/s, on the outside of her clothing, in a pool, causing the complainant to flip out of his hands.

   Trial

6. The Crown case at trial was that on the day in question, the appellant had thrown the complainant into the air so that she would land back in the pool, on four or five occasions.  It was not alleged that the appellant had touched the complainant inappropriately on the first occasion.  However, on the following occasions, the Crown contended that the appellant moved his hand, wriggling his fingers towards the lining of her underwear, with, on the last occasion, the consequence that her shorts were moved aside, as was the lining of her underwear, causing the complainant to feel it was not right and to tell the appellant that she felt sick and she flipped out of his hands into the water.

7. The Crown contended that the appellant’s gradual touching evidenced a willingness to act, or test the waters and that those uncharged occasions could be taken into account by the jury, if they accepted the complainant’s evidence beyond reasonable doubt, as demonstrating the appellant’s sexual interest in the complainant, which he put into effect when he decided to touch her on the vagina on the charged occasion.

8. The defence case at trial was that any touching was accidental and not consistent with the existence of a sexual interest in the complainant.

   Evidence

9. The complainant spoke to police on 23 March 2020. By that stage, she was 14 years of age. A transcript of the recording of her statement was admitted, pursuant to s 93A of Evidence Act 1977, (the Act) and played to the jury.

10. In that interview, the complainant said that on the day in question (which was not particularised, other than having occurred on a date unknown between 28 October 2014 and 27 October 2015), there were a group of people in the pool.  The appellant was picking children up and throwing them into the pool, as part of a game.  When the appellant grabbed the complainant, he “picked me up like that from my bottom and stuff and then he kept like putting his fingers like, yeah, trying to put his fingers there and I, like he done it a few times and I told him that I didn’t wanna be picked up and he, he just kept throwing me in”.[1]  The complainant said it happened four or five times before she left the pool.

    [1]AB 207/2-5.

11. The complainant described the appellant as putting his fingers in and wriggling his fingers on the front part, near her vagina.  The appellant touched her vagina with his fingers on the last three or four occasions.  It as felt like one or two of his fingers moving, wriggling around with her clothing still underneath.

12. The complainant said the point at which it stopped being fun was the “third time he chucked ‘cause the first time he didn’t do anything, the second time he did, and then he done it again, so that’s when I started like, and that, yeah, that’s when my sister walked past and I had a really uncomfortable look on my face and I was telling her to help me”.[2]  On the last occasion, the complainant said “put me down, I feel sick. So I like, um, …flipped out of like his hands and that’s when I quickly got out of the water”.[3]  On that occasion, the appellant was trying to move the clothing out of the way, which is why she flipped out of his hands.

    [2]AB 214/25.

    [3]AB 254/30.

13. The complainant’s evidence was pre-recorded and played to the jury.

14. In cross-examination, the complainant said the appellant picked her up and threw her into the pool four or five times, with one hand on her waist and the other hand down near her bum.  The appellant touched her front area three to four times: “Not so much on the first time, no … His hand was more towards the back of my bottom.”[4]  He touched her underneath her pants, two maybe three of the four times.

    [4]AB 276/40-42.

15. The complainant’s sister, MJS, spoke to police on 5 May 2020. Her recorded interview was also admitted pursuant to s 93A of the Act. She said they were all swimming in the pool when the appellant commenced to grab them, to throw them up into the air, back into the pool. The appellant would pick them up and his hands would be near her vagina. The complainant spoke to her about feeling really uncomfortable, but MJS could not remember the conversation at all. Later, they spoke to her mother. MJS said she had not felt uncomfortable.

16. In evidence, MJS recalled being in the pool with the complainant and a number of other children.  There was a lot of yelling and laughing.  At one point they were playing a game of chicken.  She agreed that the children wanted to be thrown in the water.  She said the complainant was thrown into the pool more than three times.  The process was that the appellant would either throw her or the complainant into the pool and they would swim back and go up to him to be thrown again.  She did not remember the complainant telling the appellant “don’t throw me into the pool”, but said that she was not with her the whole time they were being thrown in the pool.  She did not remember the complainant asking to be thrown in the pool.

17. The complainant’s mother, RAP, gave evidence that the complainant was her second eldest daughter.  RAP said her ex-partner, FJT, was the appellant’s cousin.  In 2014 and 2015, she and her children were living with her brother, RBA, FJT and her then partner, LKM at a house that had a pool.  The appellant would visit them at that house.  He would swim in the pool, sometimes with the children.  The appellant would throw the complainant in the pool, as part of playing with the children.

18. The complainant’s mother said whilst living at the house, the complainant said that when the appellant was throwing her in the pool, he kept touching her “down below”.[5]  She asked the complainant if it was not an accident and she said “no”.  The complainant said the appellant kept encouraging her to go back in the pool.  RAP told the complainant to stay out of the pool if she felt uncomfortable.  RAP spoke to the appellant later that same day.  She told him that the complainant was feeling a bit uncomfortable about being thrown in the pool and if he could stop doing it.  The appellant replied, “Okay”.

    [5]AB 144/21.

19. RAP agreed the appellant was throwing other children, apart from the complainant, into the pool.  He would throw anybody that wanted to splash around.  Nothing she saw caused her concern.  She also agreed there were other adults in the pool at the time.

20. FJT gave evidence that the appellant was his cousin.  He would visit from time-to-time.  He agreed that the appellant would spend time with the complainant and that there was never any interaction which caused him concern.

21. LKM gave evidence that he was in a relationship with the complainant’s mother in 2014 and 2015.  He knew the appellant as a cousin of her previous partner.  The appellant would visit the house on occasions.  He would swim in the pool with the children.  He recalled an occasion when he was in the pool, when the appellant was playing with the children.  The appellant picked the complainant up and threw her into the pool.  There were other children in the pool at the time.  The complainant ended up being the last one with the appellant in the pool.  He did not remember anything suspicious or untoward happening in the pool that day.

22. RBA gave evidence that he knew the appellant as FJT’s cousin.  He remembered occasions when the appellant would throw the complainant into the pool.  He would throw her from under the hips, sometimes holding her butt.  He did not see anything that was of concern to him about inappropriate behaviour.  He agreed there would be other children in the pool at that time, as well as adults being present.

23. A police officer gave evidence that he spoke to the complainant on 23 March 2020, after attending her high school.  He later travelled to the appellant’s residence.

24. The appellant elected not to give or call evidence at trial.

    Consideration

    Ground 1

25. The appellant submits that the trial judge erred in directing the jury that the uncharged occasions of throwing the complainant in the pool, could be used as evidence of a sexual interest and a willingness to act on that sexual interest.  The appellant submits that those acts were ambiguous and may have involved accidental touching, such that it was not open to the jury to use them as evidence of sexual interest.

26. There is no merit in this ground.

27. The trial judge carefully directed the jury in relation to the use of the uncharged acts.  Relevantly, the trial judge said:

    “Now, [the appellant] is charged with the single offence of indecent treatment of a child under 16 under 12.  The prosecution had led evidence of the conduct with which [the appellant] is charged.  In addition, the prosecution has led evidence of other touching of her bottom and vaginal area by [the appellant] immediately before the touching which is the subject of this indictment.  The complainant described the final touching as being when she ‘flipped out of his hands’

    The prosecution relies on this other evidence to prove that [the appellant] had a sexual interest in the complainant and was prepared to act upon it.  The prosecution argues that this evidence makes it more likely that [the appellant] committed the offences – the offence, I should say, with which he is charged.  You could only use this other evidence if you were satisfied beyond reasonable doubt that [the appellant] did act, as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue.  If you are not satisfied of those things beyond reasonable doubt, then that may affect your assessment of the complainant’s evidence about the acts which are the subject of the offence with which [the appellant] is charged.

    If you do not accept that this evidence proves, to your satisfaction, that [the appellant] had a sexual interest in the complainant, you must not use the evidence in some other way to find that [the appellant] is guilty of the offence with which he is charged, and if you are satisfied that there was this other conduct, and that this conduct does demonstrate a sexual interest, of [the appellant], in the complainant, it does not follow that [the appellant] is guilty of the offence which is charged.  You cannot infer only from the fact that this other conduct occurred, that [the appellant] did the thing with which [he] is charged.  You must still decide whether, having regard to the whole of the evidence, the offence charged, based on the particulars that have been placed before you, has proved, to your satisfaction, or has been proved to your satisfaction beyond a reasonable doubt.”

28. Those directions properly directed the jury as to the use that may be made of the evidence and as to the high standard of proof required before that evidence could be used by the jury.

29. Whilst the appellant submitted that the prior touchings were not unambiguously sexual, the circumstances in which the complainant described those touchings were, if accepted by the jury beyond reasonable doubt, unambiguously sexual.  They did not merely involve placing his hand in that area.  The complainant’s description was of a wriggling of the fingers towards her underwear, in respect of the last three of four occasions.  Further, each were specific occasions, not part of the same event and could properly be taken into account as separate incidents for the purposes of the sexual interest direction.

30. Finally, there is no risk the jury misunderstood that the first and perhaps second occasions, may have been accidental.  That was conceded by the Crown and used by defence counsel to submit that the jury could not be satisfied there was any difference in relation to the later occasions.

    Ground 2

31. The appellant submits that the prosecutor impermissibly invited the jury to treat the evidence of the complainant as that of a “victim” of sexual violence.  The use of that term, it was submitted, occasioned a miscarriage of justice, justifying a setting aside of a conviction.

32. The prosecutor said in her address:

“You can be satisfied beyond a reasonable doubt of the essential elements in what you might think, on the face of it, is a he said/she said case.  Sexual offences, offences against children, are almost always committed in discreet ways so as not to get caught.  We have to, and we can and we do, rely on the evidence coming from a single witness, a he said/she said case.”

1. Later, the prosecutor said:

   “And, members of the jury, we don’t know how a complainant, a victim, a person, particularly a child, may react when something like this has happened to them at any point and we can’t judge them for that. It’s dangerous to make assumptions or preconceived notions about how victims or complainant children should behave.”

2. Whilst the description “victim” can be a pejorative term which prosecutors, rightly, should avoid using when seeking to persuade a jury of a defendant’s guilt, beyond reasonable doubt of the offence, the subject of complaint, the prosecutor’s use of that term in this address, was in reference to preconceived notions as to how persons should behave.  In doing so, the prosecutor did not only refer to a victim.  On each occasion, there was reference to a complainant or complainant children.

3. Against that background, there is no basis to conclude that the use of that term wrongly influenced the verdict.  The jury were clearly directed that the onus remained on the Crown to prove all of the elements of the offence, beyond reasonable doubt.

4. The prosecutor’s address did not result in the trial process being unfair, nor was it “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.[6]

   [6]HCF v The Queen [2023] HCA 35 at [2], citing Zhou v The Queen [2021] NSWCCA 278 at [22].

   Conclusion

5. The appellant has not established that there was a miscarriage of justice.

   Order

6. I would order:

   1.The appeal be dismissed.

NORTH J:  I agree with the reasons of Boddice JA and the order proposed.