R v HBR - [2017] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBR [2017] QCA 193

PARTIES:

R
v
HBR
(appellant)

FILE NO/S:

CA No 334 of 2016
DC No 957 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 2 December 2016 (Butler SC DCJ)

DELIVERED ON:

5 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2017

JUDGES:

Gotterson and Morrison JJA and Mullins J

ORDERS:

1. Application to adduce evidence refused.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial of four counts indecent treatment of a child under 16, one count using electronic communication to procure a child under 16, two counts indecent treatment of a child under 16, under care and two counts carnal knowledge with a child under 16, under care – where appellant was acquitted of one count of indecent treatment of a child and the jury was unable to agree on another count of indecent treatment of a child – whether the verdicts of guilty were unreasonable on the basis of a combination of aspects of the evidence at trial which the appellant submitted damaged the complainant’s credibility – whether an independent assessment of the evidence supported the verdicts of guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the appellant applied to adduce new evidence in the form of an alibi in relation to count 1 on the basis it shows there was a miscarriage of justice – where the new evidence was available but not led at trial – where the new evidence provided an alibi for the date particularised in count 1 – where the date of the offence was not an issue at trial – where the complainant’s evidence of the circumstances in which the offence was committed was not challenged by the appellant – whether leave should be granted to adduce new evidence

BCM v The Queen (2013) 88 ALJR 101, [2013] HCA 48, considered
R v Jacobs [1993] 2 Qd R 541; [1991] CCA 205, considered
R v Katsidis; ex parte Attorney-General (Qld)[2005] QCA 229, followed
R v Spina[2012] QCA 179, followed
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

COUNSEL:

S C Holt QC for the appellant
C W Heaton QC for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders proposed by Mullins J and with the reasons given by her Honour.
MORRISON JA: I have read the reasons of Mullins J and agree with those reasons and the orders her Honour proposes.
MULLINS J: The appellant was convicted after trial of four counts of indecent treatment of a child under 16 (counts 1, and 4 to 6),…

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 HBR

Details

AGLC: R v HBR [2017] QCA 193
Case: [2017] QCA 193
Decision Date: 5 September 2017

CaseChat Overview and Summary

The appellant, HBR, appealed against his convictions for multiple offences of indecent treatment and carnal knowledge of a child under 16 years of age, under the care of the appellant. The appellant was acquitted of one count and the jury was unable to reach a verdict on another count. The appeal was based on the contention that the verdicts of guilty were unreasonable and insupportable given the evidence presented at trial, and that new evidence should be allowed which might have provided an alibi for one of the charges. The trial court had to decide whether the verdicts were unreasonable and whether the new evidence could be considered.

The court considered whether the verdicts were unreasonable by conducting an independent assessment of the evidence, as required by SKA v The Queen (2011) 243 CLR 400. The appellant argued that the complainant’s credibility was damaged by various aspects of the evidence, including alleged inconsistencies and the circumstances of the preliminary complaint. However, the court found that it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences based on the whole of the evidence. The complainant's evidence, both in her s 93A interview and in person, was deemed credible and consistent enough to support the jury's verdicts.

The court also addressed the application to adduce new evidence in the form of an alibi for count 1. The new evidence was available but not led at trial, and it provided an alibi for the date specified in count 1. However, the date of the offence was not in dispute at trial, and the appellant did not challenge the complainant’s evidence regarding the circumstances of the offence. The court held that the new evidence did not warrant a new trial or an acquittal on count 1, and therefore the application to adduce new evidence was refused.

The appeal was dismissed, and the convictions were upheld. The court found no merit in the appeal grounds and did not grant leave to adduce new evidence.

Orders

Orders of the court

1. Application to adduce evidence refused.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant identified particular aspects of the evidence at trial and submitted the verdicts were unreasonable as a result of a combination of those aspects. In general terms, it was submitted the complainant’s credibility was irretrievably damaged by the matters that were summarised in the Robinson direction given by the trial judge, but in particular that the events the subject of count 2 could not have occurred, the event the subject of count 11 did not happen, the preliminary complaint was elicited from the complainant under persistent and leading questioning from the complainant’s mother and while the complainant was intoxicated, the complainant’s evidence was significantly inconsistent with the preliminary complaint evidence, and there was evidence the complainant’s mother physically assaulted and verbally abused the complainant in the period between the preliminary complaint and the complaint to the police. Although it is necessary in addressing the submissions to deal with the specific aspects of the evidence relied on by the appellant to assert the unreasonableness of the verdicts, the test to be applied is whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences which requires the court to make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty could be supported: SKA v The Queen (2011) 243 CLR 400 at [21]-[22].The complainant’s evidence The complainant turned 15 years old during the period covered by the counts. Although she had made preliminary complaints to her mother and the cousin in February 2013, the complainant did not speak to the police until almost 11 months later on 2 January 2014. The complainant’s s 93A video-recorded interview was played to the jury. As the complainant was 18 years old by the time of the trial, she also gave evidence in person before the jury. The complainant explained in her s 93A interview that she went to the police because the appellant had got “his wife and his mum and all his family to turn against me and he’s made up all these things saying that I falsely accused him”. The complainant further explained that she was not going to go to the police “because I was protecting him even though it’s been really hard this year … trying to deal with it but I’ve just had enough and I’m not a liar”. The complainant’s statement about the relevant events was as follows. Halfway through 2012 the appellant showed an interest in her and was flirtatious and she would flirt back, but it was not very serious, but then it started getting more serious in November/December. Her family lived next door to the appellant’s mother (to whom she referred as “grandmother”) who had surf skis under her house and the appellant started coming down a few weekends to go surf skiing and used to take the complainant with her brother and sister or sometimes with her brother only out into the ocean that was near the house. They would swim and the appellant would touch her legs or her bottom and started talking about himself, including his past relationships.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v HBR [2017] QCA 193
PARTIES:	R v HBR (appellant)
FILE NO/S:	CA No 334 of 2016 DC No 957 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 2 December 2016 (Butler SC DCJ)
DELIVERED ON:	5 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2017
JUDGES:	Gotterson and Morrison JJA and Mullins J
ORDERS:	1. Application to adduce evidence refused. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial of four counts indecent treatment of a child under 16, one count using electronic communication to procure a child under 16, two counts indecent treatment of a child under 16, under care and two counts carnal knowledge with a child under 16, under care – where appellant was acquitted of one count of indecent treatment of a child and the jury was unable to agree on another count of indecent treatment of a child – whether the verdicts of guilty were unreasonable on the basis of a combination of aspects of the evidence at trial which the appellant submitted damaged the complainant’s credibility – whether an independent assessment of the evidence supported the verdicts of guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the appellant applied to adduce new evidence in the form of an alibi in relation to count 1 on the basis it shows there was a miscarriage of justice – where the new evidence was available but not led at trial – where the new evidence provided an alibi for the date particularised in count 1 – where the date of the offence was not an issue at trial – where the complainant’s evidence of the circumstances in which the offence was committed was not challenged by the appellant – whether leave should be granted to adduce new evidence BCM v The Queen (2013) 88 ALJR 101, [2013] HCA 48, considered R v Jacobs [1993] 2 Qd R 541; [1991] CCA 205, considered R v Katsidis; ex parte Attorney-General (Qld)[2005] QCA 229, followed R v Spina[2012] QCA 179, followed SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed
COUNSEL:	S C Holt QC for the appellant C W Heaton QC for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent