District Court at Hervey Bay – Date of Conviction: 15 November 2017 (Robertson DCJ)
DELIVERED ON:
19 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
19 March 2018
JUDGES:
Philippides and McMurdo JJA and Douglas J
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted of one count of indecent treatment of a child under 12 years under care – where the complainant gave evidence that when she was alone with the appellant playing a computer game and sitting on the appellant’s lap the appellant touched her vagina with his fingers – where the appellant gave evidence that the complainant was on his legs but he did not touch the complainant’s vagina, that he instead put his hands on her legs to reposition her and to stop her from falling off his lap – where the complainant gave specific and detailed evidence of the appellant touching her vagina for a prolonged period – where the complainant gave evidence that she “didn’t know why” the appellant acted as he did and that it “might be an accident” and that maybe he thought he was touching her legs – whether in all the circumstances the verdict of guilty was unreasonable
CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – SUMMING UP – where after the jury retired they requested that the complainant’s evidence (given pursuant to s 21AK of the Evidence Act 1977 (Qld)) be replayed – where the trial judge ordered that that evidence together with cross-examination evidence be replayed – whether the trial judge’s failure to direct the jury not to place undue weight on the evidence that was replayed and failure to remind the jury of the defence case evidence resulted in a miscarriage of justice
[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.
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Details
AGLC
R v Halliday [2018] QCA 279
Case
[2018] QCA 279
Decision Date
CaseChat Overview and Summary
The appeal in R v Halliday arose from the conviction of the appellant for indecent treatment of a child under 12 years under his care. The complainant, a young girl, testified that while playing a computer game with the appellant, he touched her vagina with his fingers while she was seated on his lap. The appellant, however, denied any inappropriate conduct, claiming he had only touched her legs to reposition her. The central issue before the court was whether the jury's verdict of guilty was unreasonable given the evidence presented. The court also needed to determine whether the trial judge's decision to replay specific parts of the complainant's evidence without adequately directing the jury on its significance led to a miscarriage of justice.
The court meticulously examined the evidence, particularly the complainant's detailed and specific account of the alleged incident. It noted the complainant's testimony that the appellant touched her vagina for an extended period and her uncertainty about why he did so, suggesting it might have been accidental. The court weighed the complainant's evidence against the appellant's denial and the lack of any corroborating evidence. Despite the appellant's account, the court found the complainant's testimony compelling and consistent, leading to the conclusion that the jury's verdict was not unreasonable. Furthermore, the court held that the trial judge's failure to adequately direct the jury regarding the replayed evidence did not prejudice the appellant's case to the extent that it would result in a miscarriage of justice.
Given the analysis, the court upheld the conviction. The appeal was dismissed, affirming the jury's verdict as being based on credible and substantial evidence. The court's ruling underscored the importance of detailed and consistent testimony in such sensitive cases, while also noting that procedural missteps by the trial judge did not undermine the overall fairness of the trial.
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
At trial, the Crown also called evidence from the complainant’s older brother, her mother, her father and police. The appellant also gave evidence.EvidenceThe complainant’s evidence On 8 July 2016, she and her siblings were having a playdate at the appellant’s home.[1] The complainant’s mother was friends with the appellant’s wife.[2] The complainant’s mother had left the complainant and the other children at the house and went to collect the complainant’s father from work. The appellant’s wife had also left the house at the same time to go to the doctors.[3][1]AB at 214-215.[2]AB at 215.[3]AB at 217. At some stage, the appellant was alone with the complainant and they played a computer game called Minecraft, which the appellant showed the complainant how to play. The appellant and the complainant both operated the computer controls. In her interview with police, the complainant made the following disclosures. The complainant said that the day before a man (to whom she referred to as Greg, being the appellant), “touched my private”.[4] She “was playing Minecraft on his computer and [she] was sitting on his lap”[5] on a small black chair that spins around.[6] The appellant “started wiggling his fingers on it [her private]”.[7] After making that disclosure at the beginning of the interview, the complainant told police that she “didn’t know why” the appellant did it and “it might have been an accident”, and that “[m]aybe he thought it was my legs or somethink”.[8] The complainant then proceeded to describe how the appellant touched her vagina, saying he “kept touching it for the whole game” which was, she thought, for about 20 minutes.[9] The touching was on the sides and not the middle of her private,[10] which the complainant also referred to as her “gina”.[11] She said she saw his hands as well as felt them.[12] The appellant used both bare hands when touching her, and used the middle of his fingers.[13] She described it as feeling “a bit weird” and “a weird kind of sore…like a pin was going in it”.[14] The complainant came to be sitting on the appellant’s lap because he had told her to do so.[15] She had her clothes on at the time.[16] Initially, the complainant could not recall what she was wearing,[17] but then indicated she had been wearing white and black striped leggings.[18][4]AB at 213.7.[5]AB at 213.11-12.[6]AB at 218.49-50.[7]AB at 213.18.[8]AB at 213.22-23. (Emphasis added).[9]AB at 213.36-37.[10]AB at 220.12.[11]AB at 220.18.[12]AB at 222.[13]AB at 221.8-22.[14]AB at 221.5-42.[15]AB at 219.01.[16]AB at 220.12-13.[17]AB at 215.24; 221.58.[18]AB at 222.9-18. After the incident in the playroom, the complainant went out and played the game on the big TV. When her mother returned, she went out to the car and played on the iPad while waiting for her mother to finish talking.[19][19]AB at 223. The complainant said that, while in the bath, she told her younger brother that “a man touched my ’gina”.[20] Her father then asked what it was about and she told her father. Her father then told her mother.[21][20]AB at 224.11.[21]AB at 224.5-8.