R v Hce - [2021] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCE [2021] QCA 188

PARTIES:

R
v
HCE
(appellant/applicant)

FILE NO/S:

CA No 190 of 2020
DC No 53 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 11 June 2020; Date of Sentence: 3 August 2020 (Dearden DCJ)

DELIVERED ON:

3 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGES:

Morrison and Mullins JJA and North J

ORDERS:

1. Appeal dismissed.

2. Application for leave to appeal the sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant was acquitted of the remaining three counts – where the appellant appeals his conviction on count three on the ground that it is unreasonable or cannot be supported having regard to the evidence – where there were inconsistencies in the evidence of the complainant and the complainant’s mother – whether the trial judge erred by failing to take into account the complainant’s mother’s evidence – whether it was open to the trial judge to be satisfied beyond reasonable doubt of the complainant’s account of the events of count 3 – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant abandoned application to appeal on counts 1 and 4 – where the appellant was sentenced to 5 and a half years on count 2 – whether the sentence is manifestly excessive

Criminal Code (Qld), s 615C, s 668E

Filippou v The Queen (2015) 256 CLR 47; [2005] HCA 29, cited
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited
R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited
R v FAX (2020) 5 QR 117; [2020] QCA 139, cited
R v Hanley[2020] QCA 276, cited
R v RUJ[2021] QCA 114, cited

COUNSEL:

B H P Mumford for the appellant/applicant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of North J and agree with those reasons and the orders his Honour proposes.
MULLINS JA: I agree with North J.
NORTH J: The appellant was tried before Dearden DCJ, sitting without a jury, on 8 and 9 June 2020. He was charged with…

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 Hce

Details

AGLC: R v Hce [2021] QCA 188
Case: [2021] QCA 188
Decision Date: 3 September 2021

CaseChat Overview and Summary

The appellant, in this case, was convicted on four counts, including two counts of indecent treatment of a child under 12, one count of rape, and one count of attempted rape, following a trial by judge alone. The appellant was acquitted of three other counts. The appellant appealed against his conviction on the count of attempted rape, arguing that the verdict was unreasonable or could not be supported having regard to the evidence. Additionally, the appellant sought leave to appeal against the sentence imposed on the count of rape, claiming it was manifestly excessive. The appellant abandoned any appeal against the sentences for the other counts.

The primary legal issues in this appeal were whether the trial judge erred by not adequately considering the complainant's mother's evidence and whether it was open to the trial judge to be satisfied beyond reasonable doubt of the complainant's account of the events related to the count of attempted rape. The court had to determine whether the verdict was unreasonable given the inconsistencies in the complainant's and her mother's testimonies.

The Court of Appeal found that the trial judge had considered the complainant's mother's evidence and was entitled to reject it where it conflicted with the complainant's account. The court held that the trial judge was also open to being satisfied beyond reasonable doubt of the complainant's account, despite the inconsistencies. Consequently, the appeal against the conviction on count three was dismissed. As for the appeal against the sentence on count two, the court found the sentence was not manifestly excessive and therefore refused leave to appeal.

The Court of Appeal dismissed the appeal against conviction and refused leave to appeal the sentence on count two. The appellant's conviction on count three and the sentence on count two stand affirmed.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal the sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the event that the ground of appeal against conviction succeeds the appellant seeks an order that his conviction of count three be quashed and, if successful, he seeks leave to appeal against the sentence imposed on count two on the basis that it is manifestly excessive. Otherwise the appellant abandoned his application for leave to appeal against sentence on counts one and four.A summary of the evidence The complainant was born on the 24th of September 2007. As at the earliest date alleged in the indictment she was eight years of age and she was only 10 years of age as at 25 December 2017 which was the last date alleged in the indictment. The complainant’s mother and the appellant commenced a relationship and, sometime in August 2013, the appellant moved in with the complainant’s mother at an address at Goodna. They married in June 2014 and remained at that residence until 8 July 2017 when they separated and the appellant left the house. The couple reconciled and on 28 September 2017 the appellant with the complainant’s mother and children moved to a house at Inala. The reconciliation however was short lived and the appellant moved out on 2 November 2017. On 11 September 2018 the complainant took part in an interview with police which was recorded pursuant to s 93A of the Evidence Act 1977. Her evidence was recorded on 12 May 2020, pursuant to s 21AK of the Evidence Act 1977. In the s 93A interview with police the complainant alleged (concerning counts one, two, three and four):(a)That the appellant grabbed her hand and placed it on his penis, going up and down with her hand (count one);(b)That the appellant digitally penetrated her vagina in the lounge room (count two);(c)He then took her into the laundry, where he lay on the floor. He was naked from the waist down. He removed her pyjama pants and underwear, and rubbed his penis against her vagina (count three);(d)On a later occasion, exposed her to sexual activity between an adult and child, using her mother’s mobile phone (count four). At the trial counts one, two and three were alleged to have occurred as part of a single episode so that, in the s 93A interview with police on 11 September 2018 the complainant described the events of count three, following counts one and two which were alleged to have occurred in the lounge room, as follows:(a)The appellant pulled her into the laundry:[2](b)He told her to get on top, but she kept saying “no”;(c)He “decided” to pull her pants down while she was standing up, she accidentally fell, and he grabbed her and put her on top of him:[3](d)He started moving up and down;[4](e)Her vagina was on his doodle;[5](f)He tried to push his doodle into her vagina.[6][2]AR 204.6.[3]AR 204.28 – 31.[4]AR 204.45.[5]AR 206.17.[6]AR 206.58. In the police interview the complainant described how the episode in the laundry ended as follows:“Um, mum woke up and [the appellant] quickly said, get off, get off, get off. And I quickly got up, and mum and he, he had enough time to pull his pants up, and when mum walked in, mum might not actually remember this ‘cause it was like at 12 o’clock at night, or she might remember it. I actually have no idea. But um, yeah, when she walked in, um [the appellant] was on the floor with his pants up and I was standing there with my pants down, and when she walked in, she said um, why are you, why you, don’t you have, why are your pants pulled down, [the complainant]? And I said um, because [the appellant] pulled them down. And then [the appellant] was like, no, no, no, no, no, we just um, w-, I just fell over and he came, and she came and, and, oh I can’t remember what he said, but um something happened and—”[7][7]AR 205.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v HCE [2021] QCA 188
PARTIES:	R v HCE (appellant/applicant)
FILE NO/S:	CA No 190 of 2020 DC No 53 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 11 June 2020; Date of Sentence: 3 August 2020 (Dearden DCJ)
DELIVERED ON:	3 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2021
JUDGES:	Morrison and Mullins JJA and North J
ORDERS:	1. Appeal dismissed. 2. Application for leave to appeal the sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant was acquitted of the remaining three counts – where the appellant appeals his conviction on count three on the ground that it is unreasonable or cannot be supported having regard to the evidence – where there were inconsistencies in the evidence of the complainant and the complainant’s mother – whether the trial judge erred by failing to take into account the complainant’s mother’s evidence – whether it was open to the trial judge to be satisfied beyond reasonable doubt of the complainant’s account of the events of count 3 – whether the verdict was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant abandoned application to appeal on counts 1 and 4 – where the appellant was sentenced to 5 and a half years on count 2 – whether the sentence is manifestly excessive Criminal Code (Qld), s 615C, s 668E Filippou v The Queen (2015) 256 CLR 47; [2005] HCA 29, cited Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited R v FAX (2020) 5 QR 117; [2020] QCA 139, cited R v Hanley[2020] QCA 276, cited R v RUJ[2021] QCA 114, cited
COUNSEL:	B H P Mumford for the appellant/applicant D Balic for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent