R v HBN

Case [2016] QCA 341

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBN [2016] QCA 341

PARTIES:

R
v
HBN
(appellant)

FILE NO/S:

CA No 134 of 2016
DC No 22 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Dalby – Date of Conviction: 21 March 2016

DELIVERED ON:

19 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2016

JUDGES:

Margaret McMurdo P and Fraser JA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   The conviction is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED –where the appellant was convicted of raping his seven year old great niece – where the complainant gave varying accounts of how many digits were used in the rape – where the appellant contends the complainant’s evidence was uncorroborated and unreliable – where the complainant maintained at all times that the appellant digitally raped her – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the judge directed the jury in the terms of s 102 Evidence Act 1977 (Qld) – where this direction was unnecessary as there was no evidence of circumstances from which an inference could be drawn that the complainant had an incentive to conceal or misrepresent the facts – where this direction favoured the prosecution and may have caused the jury to reason impermissibly – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the prosecutor drew attention to the complainant’s naivety and asked rhetorical questions in his closing address – where the complainant seemed unsophisticated and there was no evidence she had any prior sex education that would have enabled her to make a false complaint – where the prosecutor’s rhetorical questions did not amount to a reversal of the onus of proof – whether there was a miscarriage of justice

Criminal Code (Qld), s 620
Evidence Act 1977 (Qld), s 21AW, s 93A, s 102

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59, cited
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited
R v Callaghan [1994] 2 Qd R 300; [1993] QCA 419, cited
R v Coss [2016] QCA 44, cited
R v Flynn[2010] QCA 254, cited
R v MAL[2005] QCA 238, cited
R v Rugari (2001) 122 A Crim R 1; [2001] NSWCCA 64, cited
R v TQ (2007) 173…

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Details
AGLC
R v HBN [2016] QCA 341
Case
[2016] QCA 341
Decision Date

CaseChat Overview and Summary

In the case of R v HBN, the appellant appealed against his conviction of raping his seven-year-old great niece. The primary contention was the reliability of the complainant's testimony, who provided varying accounts regarding the number of digits used in the alleged rape. The appellant argued that the jury should not have accepted the complainant's account as reliable beyond reasonable doubt due to the uncorroborated and unreliable nature of her testimony. The appeal further argued that there was a misdirection or non-direction by the trial judge, and that the prosecutor's conduct during the closing address amounted to a miscarriage of justice.

The court examined whether the jury was entitled to accept the complainant's account as reliable beyond reasonable doubt, considering the varying accounts of the alleged incident. The court also assessed whether the trial judge's direction to the jury under s 102 of the Evidence Act 1977 (Qld) was appropriate and whether the prosecutor's conduct during the closing address amounted to a miscarriage of justice. The court considered the evidence at trial, the complainant's testimony, and the reliability of her account in determining the appeal.

The court found that the complainant's account was consistent and reliable, and that the jury was entitled to accept it as reliable beyond reasonable doubt. The court also found that the trial judge's direction to the jury under s 102 of the Evidence Act 1977 (Qld) was unnecessary and may have caused the jury to reason impermissibly. However, the court found that the prosecutor's conduct during the closing address did not amount to a miscarriage of justice. Ultimately, the court allowed the appeal on the second ground and ordered a retrial.

The court ordered that the conviction be set aside and a retrial be ordered. The court found that the complainant's account was consistent and reliable, and that the jury was entitled to accept it as reliable beyond reasonable doubt. However, the court found that the trial judge's direction to the jury under s 102 of the Evidence Act 1977 (Qld) was unnecessary and may have caused the jury to reason impermissibly. The court also found that the prosecutor's conduct during the closing address did not amount to a miscarriage of justice. The appeal was allowed on the second ground, and a retrial was ordered.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction is set aside.

3. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Although, I would allow the appeal on the second ground and order a retrial, I will consider all three grounds in order.The evidence at trial A consideration of the first ground requires this Court to review the evidence at trial and determine whether, on the whole of that evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[1][1]M v The Queen (1994) 181 CLR 487, 493 – 495; SKA v The Queen (2001) 243 CLR 400, [12]. On 19 December 2014, the complainant’s mother discussed with the complainant a news report concerning eight children who were killed by their aunt. The mother said:“If anything happens to you, you would tell me. If anyone touches you or hurts you, you would tell me. Like [the appellant], Nanny, Poppy or anyone hurts you or touch you, you’d tell me, or Dad or anyone.”[2]The complainant responded “[the appellant] touched my wee-wee with two fingers.” The mother cautioned, “You better not be lying because it’s not something you’d lie about. You’d tell me the truth.” The complainant said, “It’s the absolute truth.” The mother said they would talk about it later. Her three children, the complainant included, were in the car that afternoon when the mother picked up her husband, the complainant’s father, from work. She told him what the complainant had said, outside her hearing. He then asked her, “Did anyone hurt you? What you said to Mum, was it true?” She then said: “[The appellant] touched my wee wee.” Her parents then “dropped the subject.”[3][2]T1-19, AB 54.[3]T1-19 – T1-20, AB 54 – 55. The mother also gave evidence that the appellant, her uncle, who lived nearby, came to her house on Thursday, 18 December 2014. He was in the lounge room with her three children. She left the lounge room with two of the children, leaving the appellant and the complainant sitting on the lounge, some distance apart.[4] When she returned, the appellant was sitting directly beside the complainant with his legs touching her leg. As soon as she walked in he “turned back and instantly jumped.” She told the children to get ready for bed. The appellant walked out of the lounge room and she asked her husband to take him home.[5][4]T1-15, AB 50.[5]T1-18, AB 53. In cross-examination she said that, although she walked up behind the lounge, she did not consider the appellant’s jump was a “startled reflex” as she was “heavy” and could be heard coming.[6] The complainant did not tell her Nanna or any family member other than her and her father about the incident.[7][6]T1-24, AB 59.[7]T1-31 – T1-32, AB 66 – 67. The complainant’s father gave evidence that on the evening of 18 December the appellant dropped in and went to the lounge room. As the mother was putting the children to bed, the appellant came from the lounge room into the kitchen and he drove him home. The father came home and went to bed. The next day when he asked the complainant what happened the previous evening, she responded, “He touched my wee-wee.”[8][8]T1-35, AB 70.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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