R v HBO - [2017] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBO [2017] QCA 18

PARTIES:

R
v
HBO
(appellant)

FILE NO/S:

CA No 79 of 2016
DC No 501 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Hervey Bay – Date of Conviction: 11 March 2016

DELIVERED ON:

24 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2016

JUDGES:

Fraser and Philip McMurdo JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Appellant’s convictions of 11 March 2016 quashed.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CORROBORATION – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING – where sexual offences against the appellant’s stepdaughter were alleged to have occurred between 1989 and 1994 – where there was a delay of 25 years between the alleged conduct and the making of the complaint – where the complaint was largely uncorroborated – where the complaint was contemporaneous with the complainant learning of the appellant’s extramarital affair – where a Longman direction was given but failed to specify the aspects of the complainant’s testimony requiring additional scrutiny – where the defendant’s counsel had agreed with the direction proposed to be given by the trial judge – whether the Longman direction in general terms was sufficient – whether the trial judge was required to alert the jury to the specific circumstances of the case which required careful scrutiny

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v GAQ[2013] QCA 309, cited

COUNSEL:

D R MacKenzie for the appellant
D Nardone for the respondent

SOLICITORS:

Suthers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.
PHILIP McMURDO JA: After a three day trial before a jury in the District Court, the appellant was convicted of seven counts of sexual offending against his stepdaughter. The most serious offence was an attempted rape for which he was sentenced to four and a half years’ imprisonment. He was sentenced to concurrent terms of three years and two years’ imprisonment on other counts each of which was an offence of the indecent treatment of a child under the age of 12 years and (in some instances) a child under his care.
He appeals against his convictions upon two grounds. The first is that the trial judge did not give an adequate warning, according to Longman v The Queen,[1] as to the consequences in this case of the complainant’s delay in the reporting of these incidents. The second is that the trial judge did not warn the jury about specific features of this case which affected the complainant’s reliability and required a judicial warning in…

Grounds of appeal

[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.

Continue reading R v HBO

Details

AGLC: R v HBO [2017] QCA 18
Case: [2017] QCA 18
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the case of R v HBO, the appellant, who was convicted of sexual offences against his stepdaughter, appealed against his conviction on the grounds that the trial judge failed to properly direct the jury about the circumstances in which the complaint was made, which required additional scrutiny. The alleged offences occurred between 1989 and 1994, and the complaint was made 25 years later. The complaint was largely uncorroborated and coincided with the complainant learning of the appellant’s extramarital affair. A Longman direction was given but did not specify the aspects of the complainant’s testimony requiring additional scrutiny.

The court had to determine whether the Longman direction in general terms was sufficient or whether the trial judge was required to alert the jury to the specific circumstances of the case which required careful scrutiny. The court held that a Longman direction was required in this case as the delay in making the complaint had disadvantaged the defendant, and the jury needed to be informed of the effects of this delay. However, the direction given was insufficient as it did not identify the circumstances relevant to the evaluation of the complainant’s testimony. The court found that the jury might overlook necessary considerations and that there was a risk of a miscarriage of justice.

The appeal was allowed, and the appellant's convictions of 11 March 2016 were quashed. A retrial was ordered as the court found that the insufficient Longman direction might have led to an unsafe and unfair verdict. The court did not speculate on the outcome of the retrial but held that a retrial was necessary to ensure the appellant received a fair trial.

Orders

Orders of the court

1. Appeal allowed.

2. Appellant’s convictions of 11 March 2016 quashed.

3. Retrial ordered.

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

As to the second ground, the respondent argues that none of the circumstances which were said to have required a Robinson direction was exceptional or not apparent to the jury, in the absence of such a direction.Consideration There is no issue that a Longman direction was required in the present case. The trial judge was obliged to inform the jury that the delay in the making of the complaint had disadvantaged the defendant because the evidence of the complainant could not be adequately challenged, either by cross‑examination or by contradictory evidence, after the passage of about 25 years. It was necessary for the jury to be given an explanation of the effects of this delay because they were matters which may not have been apparent to the jury.[11] The respondent argues that these effects were well explained by the trial judge. But that is not the appellant’s criticism of the direction: rather, what is criticised is in what was said, or not said, about the evaluation of the complainant’s testimony.[11]Longman (1989) 168 CLR 79 at 90. Having identified those effects of the delay on the fairness of the trial, the trial judge was required to warn of the danger in convicting in this case without the jury scrutinising the complainant’s testimony with great care and considering the circumstances which were relevant to that evaluation of her testimony. What was said in that respect could not be criticised. The question is whether a warning in those general terms was sufficient in the present case because of a risk that, unassisted by the trial judge’s instruction as to what were those circumstances, the jury might convict without that required scrutiny of the evidence. Of course the jury had heard the addresses of counsel as to whether to accept or reject the complainant’s evidence. But they were arguments which, as the trial judge told the jury in the usual way, the jury was not bound to accept. The jury was bound to follow the trial judge’s instructions and, in particular, to heed the warning within this instruction about the complainant’s testimony. Unless “the circumstances relevant to its evaluation” must have been plain to the jury, the warning could have been sufficient only if those circumstances were identified by the trial judge. By doing so, the trial judge would not have been endorsing any of the arguments to the jury as to why the complainant’s testimony should not be accepted. Rather the trial judge was to identify what had to be considered before that testimony could be accepted. In my view this was not a case where the circumstances relevant to the evaluation of that testimony were so obvious that they could not be overlooked. The relevant circumstances were the passage of 20 to 25 years from the alleged events, the young age of the complainant at the time, the absence of any complaint notwithstanding the complainant’s close relationship with her mother and twin brother, the circumstance that many of the events were said to have occurred as she slept or after she had awoken, the antipathy of the complainant towards the appellant from his having been unfaithful to her mother, the coincidence of the timing of her learning of that fact and her complaint to police and the complainant’s explanation for going to the police when she did. Without those circumstances being identified by the trial judge as necessary considerations, what was said was insufficient to instruct the jury of the required scrutiny of the complainant’s testimony. Consequently there was a risk that the jury might overlook necessary considerations and consequently there was a miscarriage of justice.

CITATION:	R v HBO [2017] QCA 18
PARTIES:	R v HBO (appellant)
FILE NO/S:	CA No 79 of 2016 DC No 501 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Hervey Bay – Date of Conviction: 11 March 2016
DELIVERED ON:	24 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2016
JUDGES:	Fraser and Philip McMurdo JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. Appellant’s convictions of 11 March 2016 quashed. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CORROBORATION – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING – where sexual offences against the appellant’s stepdaughter were alleged to have occurred between 1989 and 1994 – where there was a delay of 25 years between the alleged conduct and the making of the complaint – where the complaint was largely uncorroborated – where the complaint was contemporaneous with the complainant learning of the appellant’s extramarital affair – where a Longman direction was given but failed to specify the aspects of the complainant’s testimony requiring additional scrutiny – where the defendant’s counsel had agreed with the direction proposed to be given by the trial judge – whether the Longman direction in general terms was sufficient – whether the trial judge was required to alert the jury to the specific circumstances of the case which required careful scrutiny Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v GAQ[2013] QCA 309, cited
COUNSEL:	D R MacKenzie for the appellant D Nardone for the respondent
SOLICITORS:	Suthers Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent