R v HAH
[2007] QCA 291
•7 September 2007
SUPREME COURT OF QUEENSLAND
CITATION:
R v HAH [2007] QCA 291
PARTIES:
R
v
HAH
(appellant)FILE NO/S:
CA No 59 of 2007
DC No 3256 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
7 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
27 August 2007
JUDGES:
McMurdo P, Wilson J and Philippides J
Judgment of the CourtORDER:
1.Appeal against conviction allowed
2.Convictions on each count set aside
3.Instead, on each count a verdict of acquittal is entered
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where appellant was convicted of three counts of indecent treatment of a child under 12 years whilst in his care – where appellant contended that the complainant's evidence was uncorroborated and inconsistent and incapable of supporting the jury's guilty verdicts – whether the verdicts were unreasonable and not supported by the evidence
Criminal Code 1899 (Qld), s 668E
Jones v The Queen (1997) 191 CLR 439, cited
M v The Queen (1994) 181 CLR 487, followed
MFA v The Queen (2002) 213 CLR 606, followedCOUNSEL:
M J Byrne QC, with M P van der Walt, for the appellant
M J Copley for the respondentSOLICITORS:
Macrossans Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: In November 2005, the appellant was a 40 year old supply teacher at the school of the seven year old complainant girl, G. His wife was G's teacher. In December 2006 he pleaded not guilty to three counts of indecent treatment of G, who was under 12 and in his care. Count 1 was said to have occurred on 26 November 2005 and counts 2 and 3 on 26 May 2006. He was convicted after a jury trial on all counts. He appeals against his conviction contending that each verdict was unreasonable because of the discrepancies and inadequacies of G's uncorroborated account and that in any case the verdicts on counts 2 and 3 were unreasonable because the evidence was not such as to allow a reasonable jury to find the element of indecency.
The evidence
A consideration of the grounds of appeal first requires a review of the evidence. G's testimony, which was central to the prosecution case, consisted of her video recorded interview with police on 29 May 2006 when she was seven years old and in grade 3 and her later evidence for trial which was pre-recorded on 5 February 2007 when she was eight years old and in grade 4.
She gave police the following account. She was in a composite class of early primary students. She came to the school in the first half of grade 2 in 2005. At first she did not really get on well with the other children but by the time of the police interview she considered this was "getting better". The police officer asked G questions to ascertain whether she understood the difference between telling a lie and telling the truth including:
"If you went home and you told a lie to mum and dad and they both found out, what would happen?-- You would get a big walloping with – dad's got a cane – and you would get like his – we've got a bamboo and he gets the cane out and goes wham, wham, wham, really hard.
Is that good or bad?-- Real bad and it hurts.
Real bad and it hurts? OK. Now, if you were talking to a policeman and he was asking some questions and you lied and you got found out lying, what do you think would happen?-- You would get into real big trouble.
OK, so would that be good or bad?-- Bad."
She explained that on Friday, 25 November 2005 her class camped overnight in the school grounds. The children were supervised only by G's class teacher (the appellant's wife) and the appellant. The next morning the appellant asked G to go to the sand pit where other children were playing and to tell them it was time for breakfast. She was wearing two piece long-legged, rainbow-striped summer pyjamas. She did as the appellant asked. After the other children had left the sand pit and returned to the camp area for breakfast, the appellant came over to where G was tidying up the sand pit toys. He said, "Have you done what I have told you to do?" G replied, "Yep". She straightened up and began to walk off to get dressed for breakfast like the others. The appellant put his hand under her pyjama pants which had loose elastic: "[H]e stuck his hand in behind there and started to rub, like real slow". She "was like just tightening up [her] butt". Later she said he squeezed her bottom for five seconds and he rubbed it slowly "going clock-wise circular". She ran very quickly away to her tent which she shared with two girl friends. She got dressed into "real strong" denim shorts which were tight around the waist. She elaborated:
"I didn't like it, so I just took off and I went into the tent and put my clothes on.
Yeah?-- I had an orange t-shirt.
Yeah?-- And it had a white thing here and it said some kind of a word. It said – I think it said, 'Mango'.
…
Did he say anything when you were running away?-- He said, 'Oh, come back here, [G].' And I was like, 'No way.'
Did he actually say that to you?-- Yes.
OK. And how – did he say that loud or not?-- He just kind of yelled it and, um, and then like Mrs [H] turned to him, saw me look into the tent and she was like, 'what is happening?'
Did Mrs [H] come and talk to you after that at all?-- No."
In response to questioning, G further elaborated on the extent of the touching. The appellant touched her bottom with the palm of his hand down the back of her pyjama pants for about five seconds. She was not wearing knickers. At the time, G made no complaint to anybody about this incident. The prosecution relied on this evidence to establish count 1.
On Friday, 26 May 2006 she was at school. As part of a maths lesson she and other students were at the water trough measuring water. She was standing next to a girl, J. The appellant walked by and wiped his hand across her bottom. G "got really angry inside [her] brain" and said (apparently to herself), "Stop doing that." This was the touching relied on by the prosecution to establish count 2.
Later that day, after maths, she was at the "making table" making things out of boxes, sticky tape and glue. The appellant came by to check on the students. When he was beside G and talking to L, a grade 2 boy, the appellant rested his right hand on her bottom for about half a minute. She felt the shape of his hand on her bottom because "he did it a little bit firm". It was not pushing or resting but lightly touching. This was the touching relied on by the prosecution to establish count 3.
After school she went home and was telling her mum about her day. She was thinking about what had happened at the "making table" and decided she would tell her parents about the appellant's touchings. She told her mum what the appellant had done to her that day. She did not tell her school friends as she was afraid they would laugh at her. She then told her mother about the incident at the camp the preceding November.
G was cross-examined at some length. In respect of count 1, she conceded that she had been digging around in the sand before she began to pick up some of the toys. She was the last child to leave the sand pit. She was being slow and was continuing to dig in the sand pit when the other children were going to breakfast. The tents and the breakfast area were on the back field some distance away from the sand pit. Mrs H (the appellant's wife) could not see her in the sand pit area from the back field.
Her pyjama pants had loose elastic but they were not so loose that they would fall down if she ran around. She ran away from the appellant after he put his hand down the back of her pants. Her pants did not come down whilst she was running. She agreed she told her mother that she pulled her pants up. She liked to wear her pants high and would pull them up from time to time.
The following exchange occurred:
"So, you say he put his left hand down your pants and moved in a clockwise direction?-- Yes.
And you stayed there for a few seconds; that is correct, and clenched your bottom?-- Yeah.
Then you ran away?-- Yep.
Where did you run to?-- My tent.
What did you do when you got to your tent?-- The flap was open so I just zoomed inside and I zipped my tent up.
HIS HONOUR: What was that? You said you zoomed inside and did what?-- Then I zipped my tent up.Zipped the tent up, thank you.
MR VAN DER WALT: What did you do inside the tent?-- I got dressed.
When you say you got dressed, what do you mean? Did you change out of your pyjamas?-- Yes.
You changed into what?-- I changed into my clothes from yesterday.
So that's the blue denim shorts and the orangey red Mango T-shirt?-- Yep.
You hadn't had breakfast yet, had you?-- No.
No, well, you say you were sent around there to call all the children over for breakfast?-- Yeah, because it was, like, very soon.
Now, you are sure that you have gone to the tent and changed into your clothes from the day before at this stage?-- Yes.
From there where did you move to?-- When I was dressed I unzipped the zipper and I walked out and I – Mrs H called me, 'It's time for breakfast.', because there was this table and, yeah, so I sat down on one of the chairs and all the other kids were there so, yep.
Okay, now, so when you went to breakfast and all the children were having breakfast you were wearing your blue denim shorts you say and an orangey red top?-- Yes."
She was shown a photograph of the group of children at breakfast at the school camp. She was wearing two piece long-legged rainbow-striped summer pyjamas. The cross-examination continued:
"[G], you didn't go back and change into the pyjamas before breakfast did you?-- I beg your pardon?
HIS HONOUR: The witness said beg your pardon; are you going to repeat that?
MR VAN DER WALT: After you changed, got to the tent and put your day clothes on from yesterday, and you had gone to breakfast; did you, at any time, go back to the tent and put your pyjamas back on and come back to breakfast?-- No.
Okay. [G], do you recognise that as a photograph of the class on the school camp in the breakfast area on that Saturday morning?-- Yes.
Do you see you are the girl standing in the middle of the photograph with your hand near a Tupperware container getting something out of it?-- Yep.
You see you are wearing your Hi-5 pyjamas there, aren't you?-- Yeah, sorry, I sometimes forget what I – you know.
So, it is clear that you are not wearing any denim pants or orange shirt there, are you?-- No."
She agreed that apart from the pyjamas her only clothes at the camp were the denim shorts and the orangey-red Mango t-shirt. She was shown a photograph of what she agreed was the class group with the appellant and his wife at the end of the camp on the Saturday afternoon. She agreed that the photograph correctly depicted her wearing long brown track suit pants and a white t-shirt with blue short sleeves.
Despite the photographs showing that her evidence was wrong insofar as her description of the clothes she was wearing after the alleged touching by the appellant, she maintained that she was not making up a story about the appellant.
She agreed she had some trouble at school with her maths and that she sometimes had assistance from a teacher aide. She complained to her mother about an autistic child who was receiving more attention than she from the teacher aide. In August 2006, she told the teacher aide and another contract teacher that she saw two students, T and J, "sexing in the spare classroom". By "sexing" she meant that she had seen them wearing nothing but their "undies" lying on cushions, hugging and kissing each other. She saw this through a crack in the blinds. She was asked:
"Now, isn't it the case that you're confusing that, what you say happened there, with an incident that happened a month earlier when [T] and [J] were putting gear back into the spare classroom and there were some younger children outside calling for them to kiss?-- Yes.
And that's the extent of what happened?-- Yes.
Mmm. Now if you tell lies at home, what happens ---
How are you – how are you disciplined or punished?-- Well, we're either sent to our room or dad smacks us or like – or mum puts soap in our mouth.
And your dad has a cane; doesn't he that he uses on you to discipline you?-- Yes.
And you describe it in the interview with police as a walloping?--Yes."
She agreed she did not tell her mother about what the appellant did to her at the school camp until May 2006. Prior to the camp, her mother on occasions explained that if someone touched her and it made her feel "a bit icky" that she should tell her mother, father or some other adult about it.
When cross-examined about the incident at the water trough she said that the appellant was "resting" his hand on her bottom. When asked about her telling the police that he wiped his hand on her bottom she said, "Yes, like, he, sort of, like, wiped it and then sort of, like, stopped on one side." She agreed she told her mother that he touched her twice at the water trough but in fact he only touched her once. He wiped his hand "across one bit and then, like, rested it on the other."
She agreed that when count 3 occurred the teacher's aide was present but she was not looking when the appellant touched her.
She was asked if count 3 was the last time the appellant touched her on the bottom. She responded that there was another time at reading on the same day when she was lying on her belly; he came over and pressed on her bottom with his hand; she wrongly claimed that she mentioned it to the police in her interview.
The complainant's mother gave evidence that after school on Friday, 25 May 2006 G told her that the appellant "keeps on touching my bottom". G said she had been reading on the carpet that day near the computer area with two other children. They were all lying on their tummies. The appellant had come beside G, crouched down, put his hand on her bottom and leant forward, telling them that it was time to finish reading. He hopped up and left. The children went back to class.
G also said that earlier that day the children were outside measuring water at the water trough. As the appellant walked by, G felt him touch her bottom. He spoke to the children and then as he walked by to go back he touched her bottom again. The mother told G, "If anybody touches you in a place that isn't right that you should tell them not to touch you there and go and tell another adult or someone." G responded, "That wasn't the only time it had happened." At the previous year's camp he had also felt her bottom. He asked her to go around to the front of the school in the sand pit area to pack up the toys and to then return to the camp area. She complied. After the other children had left, the appellant asked her if she had done what he had asked. She said she had. As she turned to leave he put his hand down her pyjama pants and felt her bottom. She squeezed her bottom tight and counted to three in her head. She ran away to the other side of the building and pulled up her pyjama pants which had fallen down a little bit. She then joined the other children. The mother asked G why she didn't tell her at the time. G said she was too scared.
In cross-examination, the mother agreed that G was a creative and imaginative girl who told lies on occasions. G told her that, after she ran off and pulled up her pyjama pants which had slipped a little bit, she went to the tent to change. She agreed that she had previously discussed with G "about good touches and bad touches" and that she would reinforce this from time to time with her. G had previously told her mother "that if anyone touched her that made her feel uncomfortable or icky that she should come and tell [her mother] or another adult." G was usually disciplined at home by "time out in her bedroom" but very rarely her mother might smack her with her hand. The mother agreed there had once been a cane in the home, a piece of bamboo from the garden. It was mainly used as a threat. On one occasion it was used on G but then G's parents got rid of it.
The principal from G's school gave evidence confirming the appellant's presence as a teacher at the school at the time of the alleged offences. In cross-examination he agreed he was aware that when G came to the school she had trouble fitting in with other children and with the school routine.
The appellant did not give or call evidence.
The appellant's contentions
Counsel for the appellant emphasised the inconsistencies in the complainant's evidence. She gave differing versions as to whether she was playing in the sand or packing up the sand pit toys when the appellant approached her. She finally conceded she was slow in returning for breakfast and she did not run back. She gave differing versions of whether and in what way her pyjama pants were falling down. She gave differing versions as to whether Mrs H saw her after the incident. They placed particular significance on the complainant's detailed but false description of changing from her pyjamas into her tight-fitting denim shorts immediately after becoming concerned about the appellant's touching of her. They also emphasised that she did not make a timely complaint in respect of the first count.
As to count 2, the appellant's counsel pointed out that G told her mother that the appellant touched her twice at the water trough, but her evidence in court was of only one touching at the water trough. She gave differing versions as to whether he wiped her bottom or rested his hand on it. As to count 3, she did not make a complaint to her mother about the incident happening at the "making table" but described a different incident when she was lying on the floor reading.
Although there were other children and adults in the vicinity when counts 2 and 3 occurred, there was no independent evidence supporting any of G's complaints. She was an unsettled young child who had told lies before. There was a real possibility that she had made up a false complaint to get attention and was subsequently reluctant to tell the truth for fear of being punished, perhaps violently.
The appellant's counsel submitted that after reviewing the whole of the evidence, the inconsistencies in G's evidence, the absence of recent complaint on count 1 and the proven unreliability of her claim to have changed her clothing after the commission of count 1 would persuade the Court to conclude that the guilty verdicts represent a significant possibility that an innocent person has been convicted: M v The Queen.[1]
[1](1994) 181 CLR 487.
Counsel for the appellant further contended that the nature of the touching in respect of counts 2 and 3 could not have been considered by any reasonable jury to be indecent.
Conclusion
In this case G gave evidence which, if accepted as truthful beyond reasonable doubt, established that the appellant committed the three offences. There was no supporting evidence. In returning their guilty verdicts the jury accepted G's evidence. There were, however, very significant weaknesses in her evidence. But should this Court gainsay the jury's verdicts?
In M v The Queen[2] Mason CJ, Deane, Dawson and Toohey JJ considered the meaning of the words which require an appellate court to allow an appeal "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" (cf Criminal Code 1899 (Qld), s 668E(1)). Their Honours noted:
[2]Above.
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not
explained by the manner in which it was given, a reasonable doubt
experienced by the court is a doubt which a reasonable jury ought to
have experienced. If the evidence, upon the record itself, contains
discrepancies, displays inadequacies, is tainted or otherwise lacks
probative force in such a way as to lead the court of criminal appeal
to conclude that, even making full allowance for the advantages
enjoyed by the jury, there is a significant possibility that an
innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." (footnotes omitted)[3][3]Above, 493-495.
The High Court's approach in M v The Queen was affirmed in Jones v The Queen[4] and more recently in MFA v The Queen[5] where McHugh, Gummow and Kirby JJ noted that:
"… until this Court re-expresses the formula to be applied, courts of criminal appeal in Australia are bound to apply the statutory provision as elaborated in the way stated by the majority in M. … In the end, [section 668E(1)] is designed to afford a mechanism against a prospect that our community and its courts continue to regard as intolerable, namely that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice. The interpretation and application of the sub-section must always keep that purpose in mind. But it involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials." (footnotes omitted)[6]
[4](1997) 191 CLR 439, 452.
[5](2002) 213 CLR 606, Gleeson CJ, Hayne and Callinan JJ at 614; McHugh, Gummow and Kirby JJ at 623-624.
[6]Above, 624.
The most serious of the counts was unquestionably the first in time, count 1. Counsel for the respondent conceded that, in the present circumstances, unless the jury were satisfied of the appellant's guilt on count 1 beyond reasonable doubt, the subsequent touchings the subject of counts 2 and 3 could not fairly be regarded as indecent. That is because it is only if the appellant is guilty of count 1 and the prosecution can show that the appellant had an unhealthy sexual interest in the complainant, that the minor touchings constituting counts 2 and 3 could be established beyond reasonable doubt to be for sexual gratification and therefore indecent rather than an innocent, caring touch from a kindly teacher: cf Harkin v The Queen.[7]It is therefore useful to consider first whether the verdict of guilty on count 1 is unreasonable and against the weight of the evidence.
[7](1989) 38 ACrimR 296.
The only evidence supporting any of the convictions came from the then seven year old G. Because her evidence at trial was entirely pre-recorded, this Court, atypically, has had the advantage of being able to view the same evidence from her as did the jury. It follows that the advantages of the jury's assessment of the evidence over this Court's are not as significant as in many appeals against conviction because this Court has itself viewed the same significant portions of G's evidence as did the jury. G presented as a vivacious, articulate and very talkative little girl who may at times have been prone to embellishment or exaggeration. Although her testimony was not independently supported, she gave to police, and initially in cross-examination, what at first appeared to be a convincing narrative of count 1, especially for a seven year old. Part of what made that narrative convincing was her account that, after the appellant had touched her bottom inside her loose fitting pyjama pants, she was so concerned that she immediately ran to her tent and changed into tight fitting denim shorts.
The appellant's counsel have pointed out a number of minor inconsistencies which emerged in G's evidence. Such inconsistencies are not unusual in cases of this sort involving young complainants. Those minor inconsistencies either alone or in combination with each other or with the absence of timely complaint as to count 1 do not warrant setting aside the guilty verdicts. But in this case independent photographic evidence has shown that a significant aspect of G's evidence was false, namely her claim that after the appellant touched her bottom inside her pyjama pants she was so concerned that she immediately went to her tent and changed from her loose fitting pyjamas into tight fitting shorts. The absence of a timely complaint to the girls with whom she shared the tent or to her mother, who had previously discussed "bad touching" with her and encouraged her to always report it, and the other inconsistencies, then become more concerning, especially as the evidence suggests G may be prone to exaggeration.
The determination of whether the jury's guilty verdicts were unreasonable and against the weight of the evidence in this case is no easy task. We are conscious of the need to give full respect to the legitimate institutional role of the jury and to make full allowance for any limited advantage the jury may have enjoyed in assessing the evidence in this case. This Court must, however, keep in mind the central pillar of criminal justice: that accused persons must only be convicted of criminal offences if the evidence establishes their guilt beyond reasonable doubt. The consequences for anyone who is convicted of offences of this type are shattering, especially for a teacher such as the appellant. To return a guilty verdict on any of the present counts, it was necessary for the jury to be satisfied that G's evidence on each count was truthful and reliable beyond reasonable doubt. As outlined above, there are very considerable proven weaknesses in G's evidence. Ultimately we are persuaded there is a significant possibility that the appellant has been wrongly convicted because we are not persuaded beyond reasonable doubt that G's evidence on count 1 was reliable. It then follows that the prosecution has not established counts 2 and 3 beyond reasonable doubt as those touchings cannot be shown to be indecent unless the appellant was guilty on count 1. That is not to say we are persuaded that G was untruthful in her evidence; the standard of proof in criminal trials is rightly high and an acquittal is not a verdict of innocence but a statement that the charge has not been proven to the high standard required in the criminal justice system. Section 668E Criminal Code 1899 (Qld) applied in accordance with the tests set down by the High Court in M and MFA in our assessment requires that the appeal be allowed, the convictions on each count set aside and instead verdicts of acquittal entered.
ORDER:
1. Appeal against conviction allowed.
2. Convictions on each count set aside.
3. Instead, on each count a verdict of acquittal is entered.
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