R v HBU - [2018] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBU [2018] QCA 346

PARTIES:

R
v
HBU
(appellant)

FILE NO/S:

CA No 283 of 2017
DC No 908 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 30 November 2017 (Smith DCJA)

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of maintaining an unlawful sexual relationship and particularised offences committed upon his twin daughters, M and A – where the offending began when the twins were 11 and continued until they were a little over 16 and M reported it to school staff – where M was able to describe several unlawful sexual acts with sufficient particularity to have them charged separately on the indictment but A could only do so for one act – where the offending occurred in the context of a family environment where the appellant was a harsh disciplinarian – where at trial the appellant did not challenge the evidence of his violence, but argued it was motive for the twins to make false complaints – where the appellant argued that it was not reasonably open for the jury to be satisfied that: the evidence of each sister was sufficiently independent; that the sisters provided truthful and accurate evidence; or that the elements of each charge had been proved beyond a reasonable doubt – whether the verdicts were unreasonable or could not be supported having regard to the evidence – whether sufficient evidence of lack of free and voluntary consent

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, cited
R v Motlop[2013] QCA 301, cited
R v Winchester [2014] 1 Qd R 44; [2011] QCA 374, cited

COUNSEL:

A J Kimmins for the appellant
C N Marco for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with the reasons of Ryan J and the order her Honour proposes.
GOTTERSON JA: I agree with the order proposed by Ryan J and with the reasons given by her Honour.
RYAN J:
Background
On 30 November 2017, the appellant was convicted, after a trial, of every count on a 15 count indictment charging him with sexual offences committed upon his twin daughters M and A.
In the case of each complainant, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child under 16 years and particularised sexual offences. The offending included the appellant directing the complainants to fellate him and other sexual acts.
The offending continued for years until M complained to school staff on 19 May…

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 HBU

Details

AGLC: R v HBU [2018] QCA 346
Case: [2018] QCA 346
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of R v HBU involved an appeal against the appellant's conviction for maintaining an unlawful sexual relationship and committing particularised offences against his twin daughters, M and A. The trial court found the appellant guilty, and he sought to appeal on the grounds that the jury's verdict was unreasonable or insupportable in light of the evidence presented. The court considered whether the evidence of each sister was sufficiently independent, truthful, and accurate, and whether it proved the elements of each charge beyond a reasonable doubt.

The legal issues before the court were whether the verdicts were unreasonable or could not be supported considering the evidence, and whether there was sufficient evidence of a lack of free and voluntary consent. The appellant argued that the evidence did not support the jury's verdict, as the sisters' testimonies were not independent, truthful, or accurate, and that there was no evidence of a lack of consent. The court examined the evidence provided by the complainants and the context in which the offences occurred.

The court found that it was open to the jury to accept the evidence of each complainant as credible and reliable. The testimonies, when considered in the context of the whole evidence in the case, provided sufficient evidence of every element of every offence on the indictment. The court concluded that it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of every offence with which he was charged. The court dismissed the appeal and ordered that the appellant's convictions be upheld.

In light of the above, the court dismissed the appeal and confirmed the appellant's convictions, finding that the jury's verdict was reasonable and supported by the evidence presented.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I would dismiss the appeal.The evidence in chief of complainant M The parties admitted that the appellant assaulted S on 20 June 2010. She then left the household. The first incident occurred after S left. The appellant invited M into his room, and said: “I want to explain something to you”.[7] She said he “pulled out his penis and he got lubrication out of the drawer and he didn’t make me perform oral sex but he made me give him a hand-job and was like this is what happens and I was about … eleven and a half when that happened”.[8][7]RB 293, 10-20.[8]Ibid. After that, “it escalated from just that to him making us give him oral sex. And then to him like forcing us to let him finger us”.[9][9]RB 293, 20-30. M described several specific instances of abuse. There was the first time (count 3), when her father “rubbed his penis with [her] hand.”[10] She said:[11]“So, I walked into the bathroom and he got the lubrication out and then he undid his pants and everything … and he was like oh, this is what you do.”[10]RB 295. 50-60.[11]RB 293, 30-50 His penis was hard. He did not ejaculate on that occasion. He did not ejaculate until he made M give him a “head job”.[12][12]RB 296, 20-30. The appellant told M the lubricant made it “easier”. The lubricant was in a clear bottle, kept in “his” drawer in the vanity. It was not a “spray” bottle, “it was like kind of a tube shape and the top of it was … like a pump kind of one”.[13][13]RB 299. This first incident occurred just before school went back after the Christmas holidays.[14][14]RB 302, 1-2. The second time (count 4) happened “a week or two later”.[15] This time, “he didn’t show [M] what to do ... [He] was like, okay, you did it last time, do it again. So he got the lubrication out and I rubbed his penis again with my hand until he said okay, that’s enough. And then I walked out. Like nothing had happened”.[16] He did not ejaculate.[17][15]RB 297, 10-20.[16]RB 297, 1-10.[17]RB 301, 25-30. M spoke more generally:[18]“And then like, he’d turn around and be like, if you don’t do this, you’re not allowed to have this. So, obviously, being a young child I wanted whatever it be, whether it’s to be able to watch T-V that night or something. And so, he’d be like this is what you do and then I’d do it because I was like well I want to be able to do what he’s saying he, he would take off me. And then, that finished, I just walked out of the room, thinking nothing was bad about it or anything. I didn’t think it was wrong or anything … And then I’d turn around and be like oh, can I have this for lunch, like just over lunch. And he’d be like, oh well, he’d call it minutes, and he’d be like oh well, you have to do a couple of minutes if you want that. Otherwise I’d get like no lunch.”[18]RB 293, 30-50. After being asked to talk about the “next time”, M explained that “a lot of them after that, kinda blur in but the next one that’s really significant was when he made me perform oral sex. That woulda probably been about four months later”.[19] It was around her twelfth birthday, because she remembered having the presents around.[19]RB 301, 40-50.

Decision

Reasons for decision

Counsel’s arguments were matters for the jury, as was the evaluation of the impact of the inconsistencies in the evidence.Conclusion It was open to the jury to accept the evidence of each complainant as credible and reliable. Their testimony, in the context of the whole of the evidence in the case, provided sufficient evidence of every element of every offence on the indictment. Accordingly, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of every offence with which he was charged on the indictment before them. I would order that the appellant’s appeal against his convictions be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBU [2018] QCA 346
PARTIES:	R v HBU (appellant)
FILE NO/S:	CA No 283 of 2017 DC No 908 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 30 November 2017 (Smith DCJA)
DELIVERED ON:	11 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Ryan J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of maintaining an unlawful sexual relationship and particularised offences committed upon his twin daughters, M and A – where the offending began when the twins were 11 and continued until they were a little over 16 and M reported it to school staff – where M was able to describe several unlawful sexual acts with sufficient particularity to have them charged separately on the indictment but A could only do so for one act – where the offending occurred in the context of a family environment where the appellant was a harsh disciplinarian – where at trial the appellant did not challenge the evidence of his violence, but argued it was motive for the twins to make false complaints – where the appellant argued that it was not reasonably open for the jury to be satisfied that: the evidence of each sister was sufficiently independent; that the sisters provided truthful and accurate evidence; or that the elements of each charge had been proved beyond a reasonable doubt – whether the verdicts were unreasonable or could not be supported having regard to the evidence – whether sufficient evidence of lack of free and voluntary consent R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, cited R v Motlop[2013] QCA 301, cited R v Winchester [2014] 1 Qd R 44; [2011] QCA 374, cited
COUNSEL:	A J Kimmins for the appellant C N Marco for the respondent
SOLICITORS:	Bosscher Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent