SUPREME COURT OF QUEENSLAND
CITATION:
R v Harris [2021] QCA 96
PARTIES:
R
v
HARRIS, Brian Trevor
(appellant)FILE NO/S:
CA No 80 of 2020
DC No 23 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Dalby – Date of Conviction: 9 March 2020 (Loury QC DCJ)
DELIVERED ON:
11 May 2021
DELIVERED AT:
Brisbane
HEARING DATE:
12 August 2020
JUDGES:
Sofronoff P and Fraser JA and North J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty by the trial judge, sitting without a jury, of two offences of indecent treatment of a child under 16, under 12, namely, T and K – where the indictment charged that the appellant committed the offences between 1 January 2010 and 31 December 2012 in the small town in which T and K lived – where, as the trial judge observed, the real issue in the trial was whether the evidence of T or K should be accepted in its essential parts beyond a reasonable doubt – where the appellant submits the trial judge’s findings of guilt were unreasonable or cannot be supported having regard to the evidence – whether, in all circumstances, the trial judge’s findings of guilt were unreasonable or cannot be supported having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant submits the trial judge erred in using the evidence of each of the two complainants (T and K) as support for the evidence of the other because the trial judge’s finding that there was no real risk of collusion between them was contrary to the evidence – where the appellant also submits such use of the evidence was wrong for the additional reason that the trial judge erred in finding that the two offences occurred within days of each other – where the appellant submits the trial judge erred in the way in which she applied Longman v The Queen (1989) 168 CLR 79 – where the appellant submits the trial judge erred by failing to provide reasons on a point about K’s credibility and reliability – where the appellant also submits the trial judge erred in assessing T and K’s evidence – whether, in all circumstances, there was a miscarriage of justice
Criminal Code (Qld), s 614, s 615B, s 615C, s 615E, s 668E
Evidence Act 1977 (Qld), s 132AFilippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, cited
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, considered
GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40, compared
Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, applied
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
M v The Queen
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- AGLC
- R v Harris [2021] QCA 96
- Case
- [2021] QCA 96
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge improperly used the evidence of one complainant to support the other, whether the trial judge's finding of no real risk of collusion was contrary to the evidence, and if the trial judge correctly applied Longman v The Queen in her assessment of the evidence. The appellant also contended that the trial judge erred in assessing the credibility and reliability of T and K, and failed to provide reasons for her assessment of K’s credibility.
The court examined the trial judge's reasons in their entirety and found that she had considered all inconsistencies in the evidence of T and K, and whether these affected their reliability and credibility. The court noted that the trial judge took into account the support each complainant's evidence provided to the other, and concluded that there was no risk of collusion. The court held that the trial judge's findings were supported by the evidence, and that it was reasonably open to the trial judge to accept each complainant's evidence as convincing proof of the alleged offences. Therefore, the guilty verdicts were reasonably open upon the evidence.
In conclusion, the court dismissed the appeal. The trial judge's findings of guilt were upheld as reasonable and supported by the evidence presented at trial.
Orders
Orders of the court
Appeal dismissed.
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
When the trial judge’s reasons are read as whole, those reasons convey that the trial judge took into account all of the inconsistencies in the evidence of each of K and T, where it was potentially relevant the trial judge considered whether those inconsistencies and discrepancies affected the reliability and the credibility of K and T, and the trial judge took all of those relevant matters into account when making the finding that there was no risk of collusion between K and T.Ground 1: Unreasonable verdict – consideration Each of T and K gave coherent and apparently compelling evidence of the elements of the offence alleged against the appellant. Each complainant adhered to her evidence of the offence in cross-examination. K’s evidence derived support from T’s eyewitness evidence of conduct by the appellant that was consistent with him having committed the offence against K. T’s evidence was supported, as to the opportunity for the appellant to commit the offence, by her parents. The credibility of T’s evidence of the offence was supported by the evidence of her mother that T made a virtually immediate complaint to her mother that was substantially consistent with T’s account of the offence. The evidence relating to the more substantial matters upon which the appellant relies is discussed in [51] – [101] and [103] – [105] of these reasons. Upon analysis, none of those matters has the importance attributed to it in the appellant’s argument, including the warning required by Longman v The Queen.There were many other, less significant, inconsistencies within and between the evidence of the witnesses, but none of the matters upon which the appellant relies required the trial judge to doubt that either complainant’s evidence of the alleged offence was honest and reliable. It is necessary to have regard to the cumulative impact of all of the matters upon which the appellant relies in deciding whether, notwithstanding the appellant’s sworn denials, it was reasonably open to the trial judge to find the appellant guilty of each offence. Upon the whole of the evidence it was reasonably open for the trial judge to find that proof of the offence against each complainant derived substantial support from the evidence of the other complainant that the appellant had committed a strikingly similar offence against her in the same small town. The prosecution case may be regarded as stronger in the charge concerning T, having regard to the evidence of her nearly immediate complaint to her mother, but in each case the combination of the circumstances I have described established a strong case that the appellant was guilty of the offence charged against him. It having been reasonably open to the trial judge to accept each complainant’s evidence as convincing proof of the elements of the alleged offence notwithstanding the appellant’s sworn denials, the guilty verdicts were reasonably open upon the evidence.Order I would dismiss the appeal.