R v FBH

Case [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…

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AGLC
R v FBH [2024] QCA 149
Case
[2024] QCA 149
Decision Date

CaseChat Overview and Summary

The appellant was convicted of indecently treating a child under 16, under 12. The trial involved the uncharged acts of the appellant touching the complainant's bottom and vaginal area, which the Crown used to demonstrate a sexual interest. The complainant testified that the appellant touched her four or five times before she left the pool, with the final act causing her to ask to be put down. The complainant's sister testified that the appellant touched her vagina three to four times. The appellant argued that the trial judge misdirected the jury in allowing the uncharged acts to be used as evidence of a sexual interest, and that the prosecutor's reference to the complainant as a "victim" was prejudicial.

The court examined whether the trial judge's directions to the jury regarding the uncharged acts were correct, and if the prosecutor's language was prejudicial. The court found that the trial judge's directions were appropriate, as they instructed the jury to consider the uncharged acts only if they were satisfied beyond reasonable doubt that the appellant had a sexual interest in the complainant, and that this conduct demonstrated a willingness to act on that interest. The court also found that the prosecutor's use of the word "victim" did not unfairly influence the jury, as it did not suggest that the complainant's evidence should be treated as that of a victim of sexual violence. The court concluded that the appellant had not established a miscarriage of justice.

The appeal was dismissed. The court held that the trial judge's directions to the jury regarding the use of uncharged acts were appropriate, and that the prosecutor's language did not unfairly influence the jury. The appellant had not demonstrated that there was a miscarriage of justice.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 The appellant has not established that there was a miscarriage of justice.Order I would order:1.The appeal be dismissed.

Ratio Decidendi

Legal Principle Established

The appellant elected not to give or call evidence at trial.ConsiderationGround 1 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. There is no merit in this ground. 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.” 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.