R v Hardy

[2023] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hardy [2023] QCA 50

PARTIES:

R
v
HARDY, Steven Louis
(appellant)

FILE NO/S:

CA No 265 of 2021
DC No 241 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 24 September 2021 (Smith DCJA)

DELIVERED ON:

24 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2023

JUDGES:

Mullins P, Boddice AJA and Bradley J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of indecent treatment of a child under 16, under 12 – where the credibility and reliability of the complainant was in issue at the trial – where there were inconsistencies between the complainant’s evidence and the various accounts recited by witnesses to whom the complainant reported the incident before making the complaint to the police – whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

COUNSEL:

The appellant appeared on his own behalf
C M Cook for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  After a trial in which the evidence, addresses and the summing up were completed in one day, the jury returned a verdict the next morning on 24 September 2021 finding the appellant guilty of one count of indecent treatment of a child under 16, under 12.

2. The appellant appeals against his conviction on the ground that the conviction is unreasonable or cannot be supported having regard to the evidence.  The appellant was represented by a solicitor and counsel at the trial.  He appears for himself on this appeal.

3. The charge against the appellant alleged that on a date unknown in 2017 he kissed the complainant on the lips and put his tongue in her mouth.  It was common ground that during 2017 the complainant was aged between six and seven years old.  The appellant turned 24 years old during that year.

   Summary of the evidence at the trial

4. The complainant’s s 93A interview with police was recorded on 7 April 2020 and included the following.  The appellant was a friend of her father and on the particular evening in 2017 her father and the appellant were drunk.  Her father was asleep in his bed, as were the complainant’s two sisters.  Her mother was still awake in the lounge room on her phone, so the complainant who was starting to get a bit tired, went into her parents’ bed with her father.  The appellant followed her in and, when she lay down and started to doze off, he came up, kissed her on the lips and put his tongue in her mouth.  She tried to slap him, but she missed and he then walked out of the room.  Her father was on the edge of the bed near the bedside table, her sisters were next to him and the complainant lay down on the opposite end to where her father was.  When the appellant put his tongue into her mouth, she felt his tongue ring in her mouth and “[i]t was gross”.  After the appellant left the room, the complainant was too tired to get up as it was 11.00 pm and fell asleep.  When the appellant was kissing the complainant, all she could see was his face.

5. The first person the complainant told about the incident was her half-sister X when X had a sleepover at the complainant’s family home about a week after the incident.  The complainant told her that the appellant kissed her on the lips and put his tongue in her mouth and then walked out of the room.  The complainant’s mother told the complainant that X had texted her about something the appellant had done and the complainant’s mother asked the complainant about it.  The complainant told her mother the same story she had told X.  She then told her father the same story.  The closet light in her parent’s bedroom was on and that helped the complainant see the appellant’s face.

6. The complainant’s s 21AK evidence was recorded on 21 May 2021.  The cross-examination of the complainant elicited the following evidence.  The complainant saw the appellant coming through the door of the bedroom when the complainant was getting into bed.  When he leant over her, his face was “upside down and to the side”.  The complainant disagreed with the propositions put to her that the appellant never came into the bedroom, he never kissed her on the mouth, and he never put his tongue into her mouth.  She disagreed also with the proposition put to her that she was asleep and woke up and that she did not know who was kissing her.  It was put to the complainant that she was making up the story about the appellant’s kissing her in the bedroom.  The complainant said it was not a lie.  She agreed that she did not call out to anyone and that she did not go back outside to tell her mother what happened.  The complainant denied that it was “just a dream”.

7. Preliminary complaint evidence was given by X.  The s 93A interview between X and the police was recorded on 9 September 2020 when X was 15 years old.  It was “like three years ago”, although X was not exactly sure of how long ago it was that the complainant told her that the appellant kissed her when he was drunk and went into her room and kissed her on the lips.  X told their father what the complainant had told her.  The complainant told her that the appellant “tasted like alcohol” and he was drunk.  The complainant would have been seven or eight years old when she told X about the incident with the appellant.

8. The s 21AK evidence of X was also recorded on 21 May 2021.  X could not recall the exact words that the complainant used when she told X about the incident, but she did remember the complainant’s saying something to the effect that “[the appellant] went into her room, kissed her on the lips and it tasted like alcohol and that she was pretending she was asleep even though he knew that she was awake”.  X did not recall whether the complainant said the incident took place on the couch or in her room.  At the time X was having a sleepover at her father’s house and she told her mother what the complainant said when she went home.  X and the complainant share the same father, not the same mother.

9. The complainant’s mother gave evidence of the setup of the house in which she and her husband and their children (including the complainant) resided in 2017.  She and her husband were friends with the appellant and they would all socialise together at their family home.  Her husband and the appellant would drink mostly beer at the house during 2017.

10. The complainant’s mother gave preliminary complaint evidence that in 2017 she was driving the car when the complainant told her about the incident with the appellant.  The complainant said that the appellant kissed her on the mouth.  The complainant’s mother then said “Did he use his tongue?” and the complainant responded “Yes, he had a little bit of tongue, and it was gross”.  The complainant’s mother asked her if she may have been dreaming and the complainant said “No”.  The complainant’s mother kept asking the complainant more questions about the whether it really happened and the complainant said “Yes”.  The complainant’s mother had another conversation with the complainant about the appellant in or around March 2020, the complainant told her exactly what she told her back in 2017.  On 7 April 2020 the complainant’s mother and her husband attended at the police station with the complainant to make a complaint.

11. The complainant’s mother’s evidence in cross-examination included the following.  When the complainant first told her about the incident, she did not accept what the complainant said.  The complainant said that the appellant kissed her on the mouth, and only said he stuck his tongue in when the complainant’s mother asked the complainant whether he did that.  They did not talk about the matter between the complainant’s first complaint in 2017 and when the complainant’s mother asked her about it again in 2020.

12. The complainant’s father gave evidence which included the following.  The appellant came over to his house to drink alcohol with the complainant’s father in 2017 at least every weekend and sometimes during the week.  He did not normally stay at the complainant’s family’s house, but some nights he did.

13. The complainant’s father also gave preliminary complaint evidence.  As a result of something his wife told him, he talked to the complainant who said:

    “[The appellant] come into the room last night and stuck his tongue down my throat.  I could – I could feel his tongue ring and taste beer. I woke up. I went to slap him in the face and he quickly left the room.”

14. The complainant’s father recalled the complainant said the incident took place in his bedroom when she was on his bed.  The complainant’s father said that he had the conversation with the complainant the day after the incident. He said that before he had the conversation with the complainant, he had last seen the appellant the previous night, when they were drinking rum or beer and the complainant’s father passed out in bed.  He said that when he woke the next morning was when he had the discussion with his wife and she mentioned something that the complainant had told her.

15. Around March 2020 the complainant’s father had another conversation with the complainant and the complainant told him exactly what she had told him back in 2017.

16. The complainant’s father’s evidence in cross-examination included the following.  The complainant’s father could not differentiate one drinking night from another drinking night.  When the complainant disclosed to him that the appellant had come into the room, she said it happened “last night”.  She said the appellant had kissed her and “He put his tongue in my throat, and I could feel his tongue ring and taste beer”.

17. It was put to the complainant’s father that he never said anything to the police when he gave a statement on 27 August 2020 about the complainant’s saying that the appellant had stuck his tongue down her throat.  He accepted there was nothing in his statement to that effect.  The complainant’s father did not accept what the complainant told him about the appellant originally in 2017.  The complainant’s father did not say in his police statement that the complainant had told him that the incident happened the night before she was speaking to him.  After the complainant had told him about the incident in 2017, the complainant’s father still had the appellant over to his home on a regular basis.

18. Preliminary complaint evidence was also given by the complainant’s paternal grandmother.  Some years previously the grandmother had a conversation with the complainant in which the complainant told the grandmother that the appellant had tried to kiss her in her father’s bedroom.  The complainant told her that the appellant tried to put his tongue in her mouth.

19. The appellant did not call or give evidence.

    The issue at the trial

20. The factual issue for the jury to determine was whether the prosecution had proved beyond reasonable doubt that the appellant had kissed the complainant in the manner described by the complainant.  The credibility and reliability of the complainant were in issue, because of inconsistencies between the complainant’s evidence and the various accounts recited by the witnesses to whom the complainant reported the incident before making the complaint to the police.  The appellant’s counsel at trial placed considerable emphasis in his address on the complainant’s failure to call out or go and see her mother after she said she slapped the appellant.

    Was the verdict of guilty unreasonable?

21. The jurors had the opportunity in the trial to assess the credibility and reliability of the complainant and, in spite of the arguments put on behalf of the appellant, the verdict of guilty shows that they concluded that the complainant’s evidence was credible and reliable.  The function of this Court on the appeal in determining whether the verdict was unreasonable or cannot be supported having regard to the evidence is to assess the evidence on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123 at [39].

22. At the hearing of the appeal, the appellant largely relied on the same arguments that had been put by his trial counsel to the jury.

23. As the above summary of evidence reveals, there were some inconsistencies between the complainant’s account given in evidence and some details of the various accounts reported to the preliminary complaint witnesses as recalled by them.  The fact that the complainant’s parents did not accept and act on her complaint in 2017 did not preclude the acceptance of the complainant’s evidence by the jury.  There was consistency in the complainant’s evidence as to where and when the incident occurred, what it involved, how it ended and what she said she reported to the preliminary complaint witnesses.  Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen (1994) 181 CLR 487, 494-495. This is not a case where the Court can be satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant’s guilt.

    Order

24. The appellant has failed to discharge the onus of showing that the verdict of guilty was unreasonable.  The order which should be made is: Appeal dismissed.

25. BODDICE AJA:  I agree that upon an independent assessment of the whole of the evidence it was open to the jury to be satisfied beyond reasonable of the appellant’s guilt of the offence of indecent treatment of a child under 16, under 12.

26. I agree with the order proposed by Mullins P.

27. BRADLEY J:  I agree with Mullins P and the order her Honour proposes.