R v HBS

[2017] QCA 205

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBS [2017] QCA 205

PARTIES:

R
v
HBS
(appellant)

FILE NO/S:

CA No 300 of 2016
DC No 331 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 18 October 2016 (Devereaux SC DCJ)

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2017

JUDGES:

Morrison and Philippides and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty of one count of unlawfully and indecently dealing with his 12 year old daughter – where the complainant alleged that the appellant had touched her vagina on the outside of her underwear – where, in her initial interview with police, the complainant said that the touching had occurred only “a couple of days ago” which was irreconcilable with the evidence – where, in later interviews, the complainant was less sure as to when the offence had taken place – where the discrepancy in time was only a matter of weeks – where the complainant gave evidence which was inconsistent with her police interview as to the appellant pulling her pants down during the touching – where there was some inconsistency about the number of times she was touched by the appellant on the night of the offending – where an honest witness could have been mistaken about these details while truthfully and reliably recalling the indecent treatment – whether it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty – where the appellant criticised the summing up as being unduly favourable to the respondent – where there was no basis to criticise the summing up – where the appellant criticised the conduct of his counsel in advising him not to give evidence – whether the appellant was deprived of the chance of an acquittal by not giving evidence

R v Baden-Clay (2016) 258 CLR 308; [2015] HCA 35, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

1. MORRISON JA:  I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.

2. PHILIPPIDES JA:  I agree that the appeal should be dismissed for the reasons given by McMurdo JA.

3. McMURDO JA:  After a trial in the District Court, the jury found the appellant guilty of the offence charged, which was that he had unlawfully and indecently dealt with his 12 year old daughter.  He was sentenced to a term of 10 months’ imprisonment, suspended after five months for an operational period of 15 months.

4. The appellant, who was represented at the trial but unrepresented on the appeal, raises one ground in his notice of appeal, namely that the jury’s verdict was unreasonable.  But as his case was argued, his complaints extended to the summing up, which he said was unduly favourable to the prosecution, and to the conduct of his counsel, in that the appellant should have been advised to give and perhaps call evidence.

5. For the reasons that follow, none of those arguments can be accepted and the appeal should be dismissed.

   The evidence at the trial

6. The offence was alleged to have occurred on a night during a period of about three and a half months in 2014.  That period was between the complainant’s birthday and the appellant’s moving from the place where the offence occurred, which was a house where the appellant then lived with his parents.  The date on which he moved was formally admitted to have been 3 July 2014.

7. The appellant and the complainant’s mother had not lived together, at least from the birth of the complainant in 2002.  There had been little or no contact between the appellant and the complainant until she was about eight years old.  The relationship between the appellant and the complainant’s mother was acrimonious, but pursuant to orders of the Family Court, arrangements had been put in place under which the complainant would stay with the appellant every other weekend and for half of the school holidays.  The appellant lived near the Sunshine Coast.  The complainant lived with her mother in Brisbane.  Because of the mother’s poor health, the girl’s maternal grandmother had much of the day to day care of the child.  The relationship between the grandmother and the appellant was also strained.

8. The evidence in the prosecution case came from the complainant, her mother and her (maternal) grandmother.  As I have said, the appellant neither gave nor called evidence.

9. According to the mother’s evidence, two days before the complainant was first interviewed by police (that interview occurring on 15 August 2014), the complainant told her of an occasion when she had been staying with the appellant when he had “climbed into her bed and had put his hand over her – her hip.  And put his hand down towards her vagina.  And moved … fingers in that area.”

10. The complainant’s grandmother recalled driving the complainant to the police station for her first interview.  In the car were also the complainant’s mother, the complainant’s younger brother and a friend of the complainant.  The grandmother said that during that trip, the complainant said that the appellant “got into bed with her, put his arm over her and put his hand down her pants, her underwear.”

11. The complainant’s evidence came from the video recordings of her interviews by police on 15 August and 30 August 2014, together with her pre-recorded oral testimony admitted under s 21AK of the Evidence Act 1977 (Qld).

12. In her first interview, the complainant appeared to be saying that the offence had occurred on the preceding Friday or Saturday night.  (This interview was conducted on a Friday.)  That was inconsistent with the charge because, as already noted, the offence was said to have been committed before the appellant moved from his parents’ house which had occurred about six weeks earlier.  The complainant was questioned several times on this point.  She said that the event had occurred “a couple of days ago” and later in the interview there was this exchange:

    “Police Officer:    [T]ell me about the next time you’re going to go and stay with your dad

    Complainant:      Umm he not going to do it hopefully

    Police Officer:     Sorry

    Complainant:      Hopefully he won’t do it

    Police Officer:     Won’t do what?

    Complainant:      Umm what happened to me with Tony and yeah, what happened on Friday.”

    I will return to that reference to “Tony”.

13. In this interview, the complainant said that she and the appellant usually slept in different rooms at the house.  She said that the appellant had claimed to be very tired that night and had not made his own bed and that for that reason, he slept with her in her bed.  She said that the appellant’s parents were not home.

14. When they were in the bed, she said, “that’s when he started doing it”, which she described as follows:  “he … basically did what Tony did … except he pulled my pants down … and, well what Tony did, he’s like touch me here”.  She said that this occurred “for nearly the whole night”.  She said that “in the morning I was like a little bit up tight”.  When asked “then what happened?”, she answered:  “he even said to me that it doesn’t matter what happens you should always tell the truth … and he said don’t worry about it … just truth hurts”.  As to that last statement, her other evidence explained that this instruction to her to be truthful was something which he often gave and it should not have been understood as some admission of wrongdoing.

15. On 30 August 2014, the complainant was again interviewed by police.  They reminded the complainant that she had said that this had occurred on a Friday night and they asked “what Friday night that was?”, to which she answered “I don’t know”.  She later said “he didn’t touch me there then on the school holidays, it was on like a normal weekend.”  Subsequently, she said that it occurred “Further back than … the school holidays,” but she was not “not sure when”.

16. In this second interview, the complainant described what had happened as follows.  She said that the appellant “rubbed my knickers, not the actual part”.  When asked for how long he did so, the complainant said that this occurred several times, the conduct being interrupted by her leaving the bed and going to the toilet.  She said that she felt sick and nearly vomited.  When asked what her father was then doing, she said that “he was just sleeping”.  When she returned to the bed, “he did it again”.  She said that he would “wait for a little bit of seconds and then keep doing it”.  When asked how many times that this occurred she said “I think about five”.  She said that nothing like this, involving the appellant, had happened before or since but added “I think we already told you, but it’s Tony.”

17. The references to “Tony” were explained by the grandmother’s evidence.  The grandmother said that police had investigated an allegation that a next door neighbour of the complainant (in Brisbane), a man called “Tony”, had touched the complainant in a sexual way.

18. In this interview she again referred to the fact that the appellant would tell her to always tell the truth.  She was asked what had made her talk to her mother when she did, and answered: “Oh that I just remembered he said no matter what always tell the truth … [i]t doesn’t matter if it makes me sad, like this is what he said to me, like it doesn’t matter if it makes him sad or mum upset … always tell the truth.”  The complainant was asked when was it that the appellant had said that and she answered: “he kept saying it whenever he leaves.”  She was asked whether the appellant always said that to her and answered “Just so he knows that like so he knows how I feel … before I leave.”

19. In her pre-recorded evidence for the trial, she identified a number of photographs of the house where she said the offence occurred.  When shown one of the photographs, she said that “that’s where I kept going to the toilet after my dad kept touching me on the vagina.”

20. In cross-examination, the complainant said that she could not say what time it was when she was first touched by the appellant, but that it was not as soon as they got into bed.  She said that she was touched “under my pants but on my knickers”.  She said that at first her pyjama pants were not tied very tightly, but that she tightened them after he had touched her and she had gone to the toilet.  At one point she seemed to say that there was only one time when she was touched, that being “the only incident”.  But immediately after that, her evidence was that she was not sure how many times she was touched that night, but that “he kept touching me.”  A little later in her cross-examination there was this exchange:

    “So there’s another occasion of touching, is there? – No

    So he only touched you once that night? – Yeah

    Are you sure about that? – I don’t know

    Did you get up to go to the toilet that night? – Yes

    How many times? – I think about five

    But he didn’t touch you five times, did he? – No

    …

    So on your version of events, you can remember one touching? – Yes”

21. But then she gave this evidence:

    “[W]hen was it that you tightened your pants up? – At night, when I went to the toilet.

    So that was after the touching? – Yes

    How long after the touching? – I don’t know

    Okay.  You got up, you went to the toilet, you tightened your pants up? – Yes

    As tight as you possibly could, I imagine? – Yes

    And you got back into bed? – Yep

    And what happened? – He touched me again.

    How did he touch you this time? – Like he did before, on my vagina.

    This is a second touching? – Yeah

    …

    So he did it a second time? – Yep

    How did that stop? – I moved.  Like, because you know how when you move in bed because you can’t just stay in one spot.

    Yes? – That’s how he stopped on that time.

    So you moved? – Yes, to see if he would stop doing it.

    And did he stop doing it? – No”

22. She was asked about the tension between the appellant and the complainant’s mother and grandmother.  She said that there had been “a couple of arguments” which occurred “before the touching”.  She recalled that the appellant had said words to the effect that she could go to live with him so that he would “try and get full custody of me so he can look after me … so that mum can get her life back properly.”  But then she said that this had happened a couple of years before the touching.  She agreed that the tension remained between the appellant and her grandmother.  She rejected the suggestion that her grandmother had encouraged her to make this complaint.  She was adamant that the touching had occurred but said that it had not happened on any other occasion.

    The appellant’s submissions

23. Much if not most of the appellant’s submissions consisted of his strenuous denials of the offence and his protest at what he says was an injustice.  As already noted, he is also critical of the summing up and of the conduct of his counsel.  Before going to those complaints, his stated ground of appeal must be addressed, which is that the jury’s verdict was unreasonable.

24. This Court must make its own independent assessment of the evidence and assess whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence for which he was charged.[1]

    [1]SKA v The Queen (2011) 243 CLR 400 at 408 [21].

25. As is common in cases of this kind, there were imperfections in the complainant’s evidence which warrant serious consideration.  The first is the complainant’s statements to police in her first interview, which were to the effect that this had all occurred only “a couple of days ago” or at least within the past week.  That was irreconcilable with the offence having been committed when and where the prosecution alleged, because the appellant had moved from that house about six weeks earlier.  About two weeks later, when she was again interviewed by police, she was less sure as to when this event had taken place.  She was not then asked by police whether it had happened within a week prior to the complainant’s speaking to her mother and then to the police.  It seems that this point was not argued before the jury, because it does not appear within the judge’s summary of the submissions of counsel.  The appellant does not make a specific complaint that it ought to have been argued by his counsel, or that it was argued but not mentioned by the judge.

26. A further inconsistency is that when the complainant was first interviewed by the police, she said that the appellant had pulled her pants down.  In her evidence in cross-examination, she said that he had not done so.

27. Further, as I have discussed, she was not entirely consistent, over the course of the two police interviews and her pre-recorded evidence, about the number of times that she was touched on this night.  On one account she was touched up to five times, and on another account, perhaps twice.

28. However these imperfections are not sufficient to displace the jury’s verdict.  As I understand her evidence, at no time was she saying that there was only one act of touching.  When she said, in cross-examination, that there had only been the one “incident,” she was apparently referring to an incident comprising what had happened on the night in question, rather than to an individual act.  A difference between two or more acts and as many as five acts, is not something which had to significantly detract from her evidence.  The same may be said about the inconsistency in her accounts about whether her pants were pulled down.  An honest witness could have been mistaken about that detail, whilst truthfully and reliably recalling that his hand, more than once, was placed on top of her underpants.

29. Her evidence as to when this occurred could be explained by the complainant being nervous when she was first interviewed by the police, having just disclosed the offence to her mother.  She may have been inclined to say that the incident had occurred more recently out of a concern that she would be criticised by the police for not reporting it earlier.  According to the complainant’s mother, the complainant told her the incident occurred “a couple of weeks earlier,” but that the complainant could not say exactly when.  She may have sensed her mother was unhappy that it had not been reported earlier.  This is speculation, because this point was not the subject of cross-examination.  In any case, the discrepancy between her timing of the offence and the time when the appellant had lived in the house, was only a matter of weeks.

30. In R v Baden-Clay, the High Court said that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step and that the court of criminal appeal is not to substitute trial by an appeal court for trial by jury.[2]  Having assessed the whole of the evidence, it is my conclusion that it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of the offence charged.  The appellant’s stated ground of appeal must be rejected.

    [2](2016) 258 CLR 308, 239-330 [65] [66].

31. In his outline of argument, which was prepared without legal assistance, the appellant says that the trial judge, in summarising the respective arguments to the jury, “was more instructing on the prosecution case and showed bias to the defence case”.  That argument was not further developed.  I can see no basis for criticising the summing up and, in particular, what the judge said in summarising the respective arguments.  The appellant does not identify any argument which he says was omitted by the judge.  Perhaps the appellant has an impression that more was said about the prosecution case, because of the directions which the judge was required to give in explaining the relevant legal principles and the application of them to the evidence.  But as I have said, there is no basis for a criticism of the summing up.

32. The appellant regrets that he did not give evidence at the trial.  In his outline of argument, he explains this predicament:

    “To give evidence as proof against these charges was difficult and my defence team seemed to focus mainly on the discrediting of the mother and grandmother.  I found it extremely difficult to discredit my daughter with evidence of some of her behaviour whilst in my care.”

    Later in his outline of submissions, the appellant said:

    “I was obviously disadvantaged by my defence [counsel] not helping me to be able to stand up in the court and give my story.  I could have been assisted by my counsel prior to the court case and told how to prepare myself so that I would be able to keep my emotions at bay, I was not told the importance of my not doing this [giving evidence].”

    Those submissions suggest that during the trial, the appellant was in an emotional state which would have made it difficult for him to testify.  His complaint is that his counsel should have told him that he should give evidence.  However, it is far from apparent that this would have advanced his case.  As I have said, there were some imperfections in the complainant’s evidence which provided arguments which could be made to the jury.  It was not inevitable that he would be convicted if he did not give evidence.  Whether his evidence would have assisted his case cannot be assessed.  His conviction should be set aside, as a miscarriage of justice, only if he was deprived of the prospect of an acquittal by not giving evidence.  That is not established.

33. The appellant’s mother was permitted to address this Court to support his submissions.  One matter which was emphasised by the appellant was that his mother and father could not have been absent from the house on the night on which the offence was said to have occurred.  This was because the appellant’s mother was in full time employment and could not have been away from the house on a holiday or for any other reason.  There was no evidence sought to be tendered in this Court to support this argument.  Nor is there evidence that this was briefed to the appellant’s trial counsel and disregarded.

1. In my conclusion, none of the submissions by the appellant could support the setting aside of this conviction.  I would order that the appeal be dismissed.