R v H - [2001] QCA 563

SUPREME COURT OF QUEENSLAND

CITATION: R v H [2001] QCA 563

PARTIES: R
v
H
(Appellant)

FILE NO/S: CA No 133 of 2001
DC No 51 of 2001

DIVISION: Court of Appeal

PROCEEDNG: Appeal against conviction and sentence

ORIGINATING COURT: District Court at Mackay

DELIVERED ON: 14 December 2001

DELIVERED AT: Brisbane

HEARING DATE: 1 October 2001

JUDGES: McPherson JA, Jones and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:
(1) Appeal allowed

(2) Conviction and verdict of 18 May 2001 be set aside and in lieu thereof, verdict and judgment of acquittal entered

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – where appellant convicted of unlawfully and indecently dealing with a child under the age of 16 years – where complainant boy aged five years at time of alleged offence – where appellant male aged 19 years at time of alleged offence – where appellant known to plaintiff – where appellant friend of complainant’s cousins – where alleged offence occurred at residence of complainant’s aunt and uncle – where complainant allegedly made fresh complaint to his mother approximately 8 days following alleged offence

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant’s evidence in chief videotaped interview pursuant to s 93A of Evidence Act 1977 (Qld) – where interview conducted 13 days after alleged offence – whether such time frame prior to interview

impacted upon complainant’s ability to freely recall events, particularly in light of complainant’s age – where lack of spontaneity in complainant’s answers to interviewer’s questions throughout interview – where interviewer in questioning complainant continually asserted alleged offence – where internal inconsistencies in record of interview

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant cross-examined by defence counsel at trial – where no evidence that corroborated complainant’s account of events – where complainant denied occurrence of alleged offence and other events - where internal inconsistencies in evidence

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – general consideration of issues surrounding evidence of child as young as complainant

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant’s mother and aunt gave evidence as to complainant’s alleged change in behaviour following alleged incident – where no expert evidence linking alleged change in behaviour to alleged offence – whether inference could reasonably be drawn of causal connection between complaint and complainant’s condition – whether changes of behaviour of child constitute corroborative circumstance

CRIMINAL LAW – JURISDCTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether learned trial judge erred in referring to complainant’s alleged behavioural changes and related evidence of complainant’s mother in summing-up to jury

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – COURSES OF EVIDENCE, STATEMENTS AND ADDRESSES – whether improper for learned Crown Prosecutor to advert to complainant’s alleged behavioural…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H

Details

AGLC: R v H [2001] QCA 563
Case: [2001] QCA 563
Decision Date: 14 December 2001

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal in Queensland. The appellant was convicted of unlawfully and indecently dealing with a child under the age of 16 years, specifically with a five-year-old boy. The appellant, a 19-year-old male, was known to the complainant and was a friend of the complainant’s cousins. The alleged offence took place at the residence of the complainant’s aunt and uncle, with the complainant reporting the incident to his mother approximately eight days later. The court had to consider the reliability and admissibility of the complainant’s evidence, particularly given the time elapsed between the incident and the interview, the lack of spontaneity in the complainant’s answers, and the internal inconsistencies in the record. Additionally, the court examined the complainant’s cross-examination, where the complainant denied the occurrence of the alleged offence and other events, further complicating the issue of credibility.

The legal issues before the court included whether the delay in the complainant’s interview and the manner in which it was conducted impacted the reliability of the evidence. The court had to weigh the lack of corroborative evidence and the inconsistencies in the complainant’s statements. It also considered the general issues surrounding the evidence of a young child, including the reliability of behavioural evidence provided by the complainant’s mother and aunt, and whether these changes could be reasonably linked to the alleged offence. Furthermore, the court reviewed whether the trial judge and the Crown Prosecutor made any errors in their handling of the complainant’s behavioural evidence and whether these errors affected the safety and satisfaction of the verdict.

The court found that the appeal should be allowed, primarily due to the significant issues with the reliability of the complainant’s evidence and the lack of corroboration. The court determined that the trial judge erred in referring to the complainant’s alleged behavioural changes and the related evidence of the complainant’s mother in the summing-up to the jury. Additionally, it was improper for the Crown Prosecutor to use the complainant’s alleged behavioural changes as confirmatory of the offence having occurred. These errors, combined with the overall unreliability of the complainant’s evidence, led the court to conclude that the verdict was unsafe and unsatisfactory. Consequently, the appeal was allowed, and the conviction and verdict were set aside, with a verdict and judgment of acquittal entered in their place.

Orders

Orders of the court

(1) Appeal allowed

(2) Conviction and verdict of 18 May 2001 be set aside and in lieu thereof, verdict and judgment of acquittal entered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v H [2001] QCA 563
PARTIES:	R v H (Appellant)
FILE NO/S:	CA No 133 of 2001 DC No 51 of 2001
DIVISION:	Court of Appeal
PROCEEDNG:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	14 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2001
JUDGES:	McPherson JA, Jones and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	(1) Appeal allowed (2) Conviction and verdict of 18 May 2001 be set aside and in lieu thereof, verdict and judgment of acquittal entered
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – where appellant convicted of unlawfully and indecently dealing with a child under the age of 16 years – where complainant boy aged five years at time of alleged offence – where appellant male aged 19 years at time of alleged offence – where appellant known to plaintiff – where appellant friend of complainant’s cousins – where alleged offence occurred at residence of complainant’s aunt and uncle – where complainant allegedly made fresh complaint to his mother approximately 8 days following alleged offence CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant’s evidence in chief videotaped interview pursuant to s 93A of Evidence Act 1977 (Qld) – where interview conducted 13 days after alleged offence – whether such time frame prior to interview impacted upon complainant’s ability to freely recall events, particularly in light of complainant’s age – where lack of spontaneity in complainant’s answers to interviewer’s questions throughout interview – where interviewer in questioning complainant continually asserted alleged offence – where internal inconsistencies in record of interview CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant cross-examined by defence counsel at trial – where no evidence that corroborated complainant’s account of events – where complainant denied occurrence of alleged offence and other events - where internal inconsistencies in evidence CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – general consideration of issues surrounding evidence of child as young as complainant CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant’s mother and aunt gave evidence as to complainant’s alleged change in behaviour following alleged incident – where no expert evidence linking alleged change in behaviour to alleged offence – whether inference could reasonably be drawn of causal connection between complaint and complainant’s condition – whether changes of behaviour of child constitute corroborative circumstance CRIMINAL LAW – JURISDCTION, PRACTICE AND PROCEDURE – JURIES – SUMMING-UP – whether learned trial judge erred in referring to complainant’s alleged behavioural changes and related evidence of complainant’s mother in summing-up to jury CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – COURSES OF EVIDENCE, STATEMENTS AND ADDRESSES – whether improper for learned Crown Prosecutor to advert to complainant’s alleged behavioural…