R v HCD

[2021] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCD [2021] QCA 177

PARTIES:

R
v
HCD
(appellant)

FILE NO/S:

CA No 202 of 2020
DC No 246 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 31 August 2020 (Chowdhury DCJ)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2021

JUDGES:

McMurdo and Mullins JJA and Mazza AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of maintaining a sexual relationship with a child in respect of the first complainant, two counts of indecent treatment of a child under 16, under 12 in respect of the second complainant and two counts of indecent treatment of a child under 16 in respect of the third complainant – where the appellant was acquitted of three counts of indecent treatment of a child under 16 in respect of the first complainant – where the jury convicted the appellant where there was corroboration of the relevant complainant’s evidence and acquitted the appellant of the three counts where no witness had seen the conduct complained of – whether the verdicts were unreasonable or unsupported by the evidence

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

COUNSEL:

A M Hoare for the appellant
D Nardone for the respondent

SOLICITORS:

Anderson Fredericks Turner Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO JA:  I agree with Mullins JA.

2. MULLINS JA:  The appellant was tried before a jury on eight counts of sexual offences against three separate children.  I will refer to the complainants in the order in which they are named in the charges respectively as A, B and C.  In respect of A, the appellant was charged with maintaining a sexual relationship with a child (count 1) and three counts of indecent treatment of a child under 16 (counts 3, 4 and 7).  He was acquitted of counts 3, 4 and 7, but convicted of count 1.  Count 1 was particularised as occurring between 21 November 2012 and 30 April 2018 which covered the period from when A was almost eight years old until about three months after she turned 14 years old.  Count 3 was alleged to have occurred on a date unknown between 21 January and 30 March 2018.  Count 4 was alleged to have occurred on a date unknown between 1 January 2018 and 30 April 2018.  Count 7 was alleged to have occurred on 24 March 2018.

3. In respect of B, the appellant was convicted of two counts of indecent treatment of a child under 16, under 12 (counts 5 and 6).  Each of counts 5 and 6 was particularised as having been committed on a date unknown between 27 October 2012 and 26 October 2014 when B was seven or eight years old.  In respect of C, the appellant was convicted of two counts of indecent treatment of a child under 16 (counts 8 and 9) committed on 24 March 2018.

4. The appellant did not give or call evidence at the trial.

5. The appellant appeals on the basis that the convictions are unreasonable and cannot be supported having regard to the evidence.

   Background

6. A and B are sisters.  Their family moved to a house in May of 2007 where the neighbours were the appellant, his parents and his brother.  The appellant was born in late 1994 and was therefore 12 years old when A and B, their parents and their brother D moved in next door.  D was born in August 2002.  A was born in January 2004 and B was born in October 2005.  The younger sister of D, A, and B (to whom I will refer as E) was born in July 2007.  D used to play with the appellant, his brother and his friends in the appellant’s backyard and the appellant was like an older brother to D.  Two or three years after A’s family had moved into that house, A’s parents bought a trampoline as a Christmas present for their children that was set up in the backyard.  The appellant would come over and play on the trampoline with D, A and B every now and then.  The appellant’s mother became sick when he was about 16 years old, and he started coming over every day to A’s family home.  The appellant moved out of his parents’ home about a year, or possibly two years, before A’s complaint was made to the police.

7. The event that preceded the complaints by the complainants about the appellant was a social function organised by the fishing club in which A’s family was involved and which was also attended by the appellant.  C, her sister and her parents were also at the function.  C was born in mid 2005.  It was an admitted fact at the trial that the function was held on 24 March 2018.  The conduct that was the subject of counts 7 to 9 was alleged to have occurred at that function.

   Preliminary complaint evidence

8. The guidance officer at the school attended by A, B and C was approached by A on 30 April 2018, after she had returned from a long suspension.  The guidance officer gave evidence of preliminary complaint by A who told her that, since she was 10 years old, the appellant who was her next door neighbour had been touching her breasts, bottom and genitals approximately four times a week.  The guidance officer reported what A had told her to the police.

9. Because A had disclosed to the guidance officer something in relation to her sister B, the guidance officer spoke to B on 1 May 2018.  The guidance officer gave evidence of preliminary complaint by B and said that B cried throughout the entire conversation and told her that the appellant had been touching her breasts, genitals and bottom since she was seven years old almost on a daily basis.  B told the guidance officer about a specific instance of the appellant entering her bedroom and trying to take off her jeans, and when she attempted to scream, he covered her mouth and she tried to kick him out of her bed.  Then her father was coming close to the room and the appellant pretended he was saying goodnight to her, but he returned later that evening and touched her body again.  The guidance officer reported what B told her to the police.

10. A gave evidence of what B told her about a week prior to A’s interview with the police:

    “[S]he said that mum and dad were out the back shed smoking cause they never smoked in the house and they were smoking and [the appellant] came,  [the appellant] was over and he didn’t go out the back and he went into [B’s] room and pulled off her pants and then she tried to scream and he covered her mouth and then touched her vagina and that’s what she told me,  I don’t know what she told you but that’s what she told me.”

11. D gave evidence about being with A at the boat ramp, when A spoke to D about the appellant touching her and trying to kiss her and touch her breasts at the fishing club social function which had taken place about two weeks prior to their conversation.  Either the night of, or the night after, that conversation, D had a conversation with A and B in D’s room.  On this occasion A said that when she was at the fishing club social function, the appellant was drunk and he tried grabbing her, kissing her and holding her down and he tried touching her breasts.  On this occasion B told D that the appellant came into the house and went into her room, pulled her pants down and touched her.

12. A’s mother gave some evidence of preliminary complaint by A.  Before the appellant had moved out of his family home, when A was about 13 years old and in year 7, A told her that the appellant would touch her on the bottom and she did not like the way he treated her and her mother told her to stay away from him.  During the evening of the fishing club social function, A told her mother that the appellant had grabbed her on the bottom and tried to kiss her.  The mother told her to sit in the van and not leave it which A did.

13. A gave evidence that on the night of the fishing club social function, C came up to her and said that the appellant had grabbed her on the bottom, when he hugged her at the fire.  C’s school friend’s evidence in the s 93A statement taken on 31 March 2019 about the preliminary complaint made to her was:

    “[I]t happened like, the first half of last year… I do remember her coming to school in the morning and telling me that… some guy touched her and she told her parents and they had gone to the police about it after school… I do know that it was like in the first half of the year and in the last half of the year we weren’t really friends.”

14. C’s friend also gave evidence that C said that the guy touched her either on the bottom or the thigh part of the leg, C told her the day after it happened, and C said she had told her parents.

15. C’s father gave evidence at the trial as follows.  He and his wife and daughters arrived at the fishing club function around 6 pm and left around midnight.  About two to three weeks after the function, C came to him and said that the appellant had been acting inappropriately around her at the function, touching her on the bottom and her breast.  C’s father did not think the first disclosure was in response to a question he asked C, but that she voluntarily disclosed the inappropriate touching to him.

    A’s evidence

16. A’s s 93A statement was recorded by the police on 10 May 2018 and included the following.  The appellant would touch her bottom and her breasts every time she saw him from when she was nine or 10 years old.  The appellant would give her piggybacks, making her sit the other way round, and he would then touch her vagina through her clothes.  While the appellant lived next door, he would touch A every time he saw her which was about four times per week.

17. When the appellant played with A on the trampoline, he would pick her up and touch her bottom.  He would get her on his back to jump around and put his hand over her vagina.  The appellant would hug her all the time and put his arm around her and touch her bottom.  Up until A was about 12 years old, the appellant would come into her room, say to come out into the lounge room and when she refused, he would pick her up and put his hand over her vagina to carry her out.  If she returned to her room, he would do it again.  When the appellant gave A a reverse piggyback, A sat on the appellant’s shoulders, so the appellant’s face would be near her vagina.  From the time A was 10 or 11 years old, the appellant would put his hand in her shirt and through her bra to touch her breasts.

18. A described the conduct that was the subject of count 3 in terms that she had gone for a run wearing tights and a Nike running top and she had gone down to a boat ramp.  She had seen the appellant and tried to avoid him, by keeping her headphones in.  She sat down near the swimming enclosure, the appellant came over and she was just trying to ignore him.  When she got up to leave, he touched her bottom and, as she started walking away quickly, he slapped it, and then A ran home.  This happened during the period that she was suspended from school.

19. A described the conduct that was the subject of count 4 as follows.  She was walking to her uncle’s house and was almost there, when she saw the appellant in his car.  He stopped and called her over to the car and said that her shirt was a bit too short.  A tried to keep walking and the appellant grabbed her shoulder.  She told him she was going to her uncle’s place and then he put his hand in her shirt to feel her breast.  She froze.  She then said she was going and he gave her a hug by putting his arm out the window.  He tried to kiss her, so she put her cheek to the side, so that he would not kiss her lips.

20. A’s account of the circumstances in which it was alleged count 7 was committed was that she was sitting around a fire at the fishing club function with C and C’s sister, when the appellant came over and hugged C and her and touched their bottoms and kept kissing them on the forehead and saying that he loved them and that was probably because he was drunk.

21. A’s evidence pre-recorded pursuant to s 21AK of the Evidence Act 1977 (Qld) included the following. After having viewed her s 93A interview, A said she had omitted to tell the interviewing police officer that the appellant took her for drives in his car and he would feel her breasts by putting his hand on top of her shirt and then straight down and instruct her to steer the steering wheel. A was in year 8 at school the first time she went on one of those drives. A had multiple conversations with B in which they used to tell each other about what the appellant did to them. A thought she was “pretty young” when she first had those conversations with B, but ultimately said she did not know when they first commenced.

22. A was cross-examined extensively and her evidence during cross-examination included the following.  A would try to avoid the appellant, as she had been scared of him since she was a little girl.  There were a couple of times when A asked the appellant to pick her up in his car.  She thought the appellant’s behaviour towards her was normal until the previous year, when she decided to speak up, because he was speaking to her about sex.  In fact, she knew in 2014 when she was in year 5 that his behaviour was not right.  The appellant’s inappropriate touching of her had happened since she was a little girl, she did not know the years, months or dates, but it happened to her all the time.  A has dyslexia and does not know numbers.

23. A was cross-examined on many text messages that were exchanged between the appellant and her.  A would go out with the appellant scavenging in skip bins which was her favourite thing to do.  A sent a message to the appellant on 4 September 2016 inviting him to come over, so that they could go out to the skip bins.  A similar message was sent by A to the appellant on 4 October 2016.  On 4 November 2016 A sent a message asking the appellant to drive her somewhere.  A explained that all the text messages were from when they were friends and she thought it was normal “he touched [her] up” and she did not understand.  In response to a question about texts where A had asked the appellant to drive her somewhere, she suggested that she was “probably using him for his car”.  A had gone out on the appellant’s boat with the appellant and D.  On one or two occasions A went fishing alone with the appellant.  The appellant hardly hugged A in front of her parents, but when he did it was a normal hug.

24. At the fireplace at the fishing club social function A saw the appellant hug C, putting his arms over C’s shoulder, and then touch her bottom with his hands.  A said that she had seen the appellant hug C at the fire and C had also told her about the appellant grabbing her on her bottom, when A responded that “he does that to me all the time”.

    B’s evidence

25. B described the incident the subject of count 5 in her s 93A statement as follows.  She was lying in bed using her games console, when her door opened.  She thought it was her mother, so she turned the console off.  She was wearing long pants.  The appellant grabbed the edge of the long pants and pulled them off and started touching her thighs and tried to get her underpants off.  At one point in the statement, B said that she then tried to yell and he covered her mouth.  B then heard her father coming to the back door, so the appellant went out of B’s room.  When her father went back outside, the appellant came back into her room and started doing the same thing.  In another part of the statement B said that it was at this point that she tried to scream out, but the appellant put his hand over her mouth and he started doing the same thing and was touching her thighs, bottom and “the front part”, but then D yelled out to the appellant from the kitchen which was near B’s room and the appellant left.

26. B’s evidence in cross-examination included the following.  When the person came into her room, she could not see who it was.  The person was at the edge of the bed, pulling down her pants.  B could see through her window that her father was coming through the back door.  The person left and came back in a second time.  Although B did not see the face of the person, he left her room when D called the appellant’s name.  B did not tell her brother what happened that night.  It was the first time the person came into her room that he covered her mouth and stopped her screaming.

    C’s evidence

27. C’s evidence in her s 93A statement taken on 20 June 2018 included the following.  C had been with A and her mother picking up people and dropping them off at the fishing club social function.  At the function, C was with the appellant’s girlfriend and they were doing gymnastics and “just hanging out”, when the appellant came up and hugged her and touched her breast and when she walked away, he would slap her bottom.  He hugged her and touched her breast five times and it was on two of those occasions he slapped her bottom.  The appellant stood on C’s left side and put his arm over her shoulder and then slowly touched her breast with his hand.  The first occasion was when she was near the bonfire and another occasion was when she was near the dance floor near the food area.  A was present on the first occasion and C’s sister and the appellant’s girlfriend were also present.  The appellant had also given A and C “normal” hugs.  During the evening C told A what happened and A told her the appellant does that all the time and to tell him to go away.

28. C’s evidence during cross-examination included the following.  The appellant’s touching of her right breast whilst he had his arm around her occurred at the dance floor first and A was there also, but on C’s other side.  The appellant touched her breast and slapped her bottom on four or five occasions.  It was later in the evening that C told A what the appellant was doing.  C did not see the appellant touch A in any way at the function and A did not complain to C that night that the appellant had touched her in a similar way about which C complained to A.  She reported the touching to her father, when he asked her whether the appellant had touched her.

    D’s evidence

29. D’s evidence in his s 93A statement taken on 23 May 2018 was as follows.  As A got older, the appellant started touching her more and he used to grab her bottom in a way that it looked like he was supporting her, when he was picking her up.  D saw that happen “like a fair few times”.  The last time D saw the appellant give A one of those hugs was one or two years before the interview, when the appellant had stopped visiting, because he had moved over the other side of town.  The appellant used to hug A differently to D and the others whom he would just pick up and throw around, but when he picked A up, he would pick her up by the bottom and clench his hands and sometimes slap her bottom.  The appellant did that when D’s parents were not around.  When their parents were around, the appellant would give A a normal hug.  The appellant would do anything to touch A’s bottom to make it look like he was helping her out such as getting out of the boat or getting off the roof.  D saw the appellant a couple of times give A a reverse piggyback where she was on his front and not his back.

30. D had also observed the appellant on the night when the appellant went into B’s room.  D saw the appellant go into B’s room, while their parents were out the back having a smoke.  As D came around the corner to go to the kitchen to make a sandwich, he heard the appellant say something and the appellant then ran out of B’s room quickly, as D’s parents were coming in from the back yard.  The appellant started talking to D in the kitchen.  The parents then went back out to play with the dogs and D saw the appellant go back into B’s room, but run out again when D’s parents were about to enter the house.

31. D’s evidence during cross-examination included the following.  D could not remember the date when he saw the appellant come out of B’s room, but he remembered the occasion.  D had seen the appellant get too close to A and grab her bottom unnecessarily when he could grab other places to pick her up for a hug, lift her up to the ceiling or give her a piggyback.  D had seen A run up to the appellant and jump into his arms for a hug, when the appellant would put his hands around her bottom and squeeze.

    E’s evidence

1. E’s evidence in her s 93A statement taken on 25 May 2018 included the following.  Sometimes A would ask if she could go out on the boat with the appellant.  It was about two years ago, when E saw the appellant lift A up and hold her bottom to give her a hug.

2. In cross-examination, E’s evidence was as follows.  A would ask to go fishing with the appellant or go in his car.  There were times when the appellant would give E a hug, but he did it “normally” with E.  A would run up to the appellant to give him a hug at times and jump up into his arms, when the appellant would put his arms around A in a bear hug with his hands down around her bottom to hold her up.

   The mother’s evidence

3. The mother of A, B, D and E observed the appellant to be like a big brother to A.  A would sit on the appellant’s knee sometimes and they would cuddle when he came in the door.  The mother had volunteered to drive the van for picking up people to go to the fishing club social function, picking up supplies and dropping people home.  The mother dropped the appellant and his girlfriend home and he was very drunk.

4. The mother’s evidence in cross-examination included the following.  The appellant was regarded “almost like part of the family”.  The appellant would hug A and B most times he would see them, if not every time.  The appellant was quite physical in his play with A and B, he would pick them up, and give them piggybacks.  When he hugged them, sometimes they would jump into his arms.  There would be times when his arms might be down around their bottoms while he was holding A and B, and that sometimes occurred in front of the mother.  The mother gave A a phone when she went to high school in year 7.  The mother did not know that A had gone scavenging in industrials bins with the appellant.  There was an occasion when A was about nine or 10 years and she was sitting next to the appellant playing Xbox, the mother asked A whether the appellant had touched her and A said no.  In re‑examination, the mother clarified that the jumping by A and B into the appellant’s arms had stopped by the time the appellant had moved in with his girlfriend.

   The appellant’s submissions

5. In respect of the conviction on count 1, the appellant submits that the verdict on that count was unreasonable, when the jury had a doubt about A’s evidence in respect of the three specific incidents that were the subject of counts 3, 4 and 7.  The appellant submits that he should have got the benefit of the doubt the jury entertained in respect of A’s evidence given on counts 3, 4 and 7, when A’s evidence was assessed in respect of count 1.  There is no complaint about the direction the trial judge gave in accordance with R v Markuleski (2001) 52 NSWLR 82 at [191].

6. The appellant also submits that the generalised complaints by A of being inappropriately touched by the appellant had to be placed in the context found in the evidence from A’s mother.  The evidence of the complainants therefore had to be considered in the context that another person who observed the physical interaction between the appellant and A and between the appellant and B did not observe the sexual context that D observed in the hugs the appellant gave to A.  The observed conduct of the appellant towards A and B was consistent with being “ordinary horseplay” of a de facto family member and not indecent.

7. In respect of each of the complainants, the appellant highlights the contradictions within the complainant’s own evidence, discrepancies between the complainant’s evidence and that of other witnesses, and inconsistencies between the complainant’s evidence and the relevant preliminary complaint evidence.  The appellant submits that the inconsistencies with the preliminary complaint evidence ought to have rationally affected the jury’s assessment of the evidence of each of the complainants.

   Were the verdicts unreasonable or unsupported by the evidence?

8. The role of this court on the question of whether the convictions are unreasonable or cannot be supported having regard to the evidence is to perform an independent assessment of the whole of the evidence to determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the counts of which he was convicted:  SKA v The Queen (2011) 243 CLR 400 at [11]-[14] and [21]-[22]. The importance of the role of the jury is not to be overlooked in this assessment of the whole of the evidence and, as pointed out by the High Court in R v Baden-Clay (2016) 258 CLR 308 at [65]-[66], the setting aside of the jury’s verdict on the ground that it is unreasonable is a serious step “not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”.

9. As the respondent submits, the verdicts of the jury are explicable on the basis that the jury convicted where there was corroboration of the relevant complainant’s evidence.  They acquitted the appellant of counts 3, 4 and 7, where no witness had seen the conduct of which A complained.  No one was present for the incidents that were the subject of counts 3 and 4 and, even though A asserted that C was present at the fishing club function, when the appellant hugged both C and A and touched their bottoms, C did not see the appellant touch A during the function, other than to give A a “normal” hug.

10. In relation to count 1, it is relevant that A gave evidence of the appellant’s inappropriate touching of her on the bottom, the breasts and her vagina over a period of almost five and one-half years during which her understanding of what was occurring developed as she went from being almost eight years old at the commencement of the period until just after she turned 14 years old.  There was consistency in A’s evidence of the descriptions of the frequent inappropriate touching by the appellant over a lengthy period of time.

11. The effect of the contradictions within A’s evidence such as saying she was scared of the appellant, but as she got older texting him as a friend, seeking to take advantage of his having a car and being willing to have him take her scavenging was a matter for the jury to take into account in assessing her evidence of the repeated inappropriate touching of her by the appellant.  Importantly in undertaking this task, A’s evidence was corroborated by D’s observing the appellant a number of times picking A up by the bottom and clenching his hands and noting that the appellant hugged A differently to how he hugged D and the others.  E also observed the appellant hold A’s bottom when he lifted her up.  D’s evidence also supports why their mother had not observed this inappropriate touching of A by the appellant, as D said that the appellant gave A a normal hug when their parents were around.  The overall strength of the evidence of the repeated inappropriate touching of A that did not depend solely on A’s evidence supports the verdict of guilty on count 1, despite the acquittals on counts 3, 4 and 7.

12. In respect of B’s evidence, although there were contradictions within her own evidence, her recollection was supported in important respects by D’s memory of the incident when the appellant came out of B’s room twice, when D was in or near the kitchen, and that on both occasions the appellant’s exit coincided with D’s parents returning to the house from the back yard.  D had also observed the appellant return to B’s room between his exits from the room.

13. As the respondent submits, even though A’s evidence of how she observed the appellant behave towards C on the night of the fishing club function did not correlate entirely with C’s evidence, A’s evidence supported that the appellant had a sexual interest in C on the night of the fishing club function and acted upon it.

14. The appellant’s contentions on this appeal are largely concerned with giving some evidence greater emphasis than other evidence.  The assessment of the evidence, the weight to be given to the various pieces of evidence, and the assessment of the complainant’s evidence in the light of inconsistencies between that evidence and the relevant preliminary complaint evidence were matters for the jury.  It was open to the jury to conclude that the existence of some degree of corroboration for each of the counts of which the appellant was convicted overcame the inconsistencies that otherwise could be seen in the evidence.  Having reviewed and assessed the whole of the evidence admissible against the appellant at the trial, and paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, I am not satisfied that it would be dangerous to permit the verdicts of guilty to stand, or that there is a significant possibility that an innocent person has been convicted.  The appellant has therefore not shown that the verdicts of the jury were unreasonable or not supported having regard to the evidence.

    Order

15. The order which should be made is therefore:

    Appeal dismissed.

16. MAZZA AJA:  I agree with Mullins JA.