R v HCM

Case [2023] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCM [2023] QCA 86

PARTIES:

R
v
HCM
(appellant)

FILE NO/S:

CA No 204 of 2022
DC No 1074 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 21 September 2022 (Clare SC DCJ)

DELIVERED ON:

2 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2023

JUDGES:

Bond JA and Boddice AJA and Bradley J

ORDERS:

1.   The appeal be allowed.

2.   The convictions on each of counts 1 and 2 be set aside.

3.   There be a retrial on counts 1 and 2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted by jury of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under 16, under 12, under care – where the appellant sought to adduce evidence at trial of his reaction when the allegations were put to him for the first time – where it was accepted his words of denial were self-serving and inadmissible – where it was submitted his reaction of ‘surprise, disbelief, shock and fear’ was consistent with innocence and exculpatory evidence – where the appellant now submits an exculpatory response demonstrative of “surprise, disbelief, shock or even horror”, is admissible as direct evidence of that reaction – where the appellant accepts there is binding authority contrary to that position – whether those decisions should be reconsidered in light of a divergent approach in other jurisdictions

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the sole evidence supporting the appellant’s guilt was given by the complainant – where the jury could only have been satisfied of the appellant’s guilt of each count, beyond reasonable doubt, if the jury was satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s evidence – where the appellant submitted there were striking inconsistencies in that evidence – where those inconsistencies must be viewed in the context of the complainant’s age and other circumstances – where the appellant submits, in the alternative, that the complainant’s evidence did not give rise to sufficient continuity or habituality that the alleged offender ‘maintained’ the sexual relationship to establish the maintaining count – whether the verdicts of guilty are unreasonable or cannot be supported by evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – where the sole evidence supporting the appellant’s guilt was given by the complainant – where the jury could only have been satisfied of the appellant’s guilt of each count, beyond reasonable doubt, if the jury was satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s evidence – where there was an obligation on the trial judge to direct the jury to…

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R v HCM [2023] QCA 86
Case
[2023] QCA 86
Decision Date

CaseChat Overview and Summary

In the case of R v HCM, the appellant was convicted by a jury of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under 16, under 12, under his care. The appellant sought to appeal his conviction, raising several grounds for the appeal, including the improper admission or rejection of evidence, the verdict being unreasonable or not supported by the evidence, and misdirection or non-direction by the trial judge. The Court was required to consider whether the appellant's convictions should be set aside and a retrial ordered.

The Court considered the arguments put forward by the appellant and the binding authorities. It found that the trial judge failed to direct the jury to the need to be satisfied of the reliability and credibility of the complainant’s account, beyond reasonable doubt, which deprived the appellant of a fair chance of acquittal. The Court also found that the failure to explicitly direct the jury to consider each count separately did not deprive the appellant of a fair chance of acquittal. However, the Court agreed with the appellant that the trial judge erred in ruling that cross-examination of the complainant’s mother, as to the appellant’s reaction in the late night pretext call, was inadmissible.

The Court concluded that the appellant's convictions must be set aside and a retrial ordered on counts 1 and 2. The Court allowed the appeal, set aside the convictions on each of counts 1 and 2, and ordered a retrial on counts 1 and 2.

Orders

Orders of the court

1. The appeal be allowed.

2. The convictions on each of counts 1 and 2 be set aside.

3. There be a retrial on counts 1 and 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Count 2 was particularised as the first occasion on which the appellant touched the complainant’s vaginal area with an object. It was alleged the touching was indecent and that at the time the complainant was a child under 12 years of age and under the appellant’s care.Evidence The complainant first spoke to police on 19 February 2020. This was a little over two years after the conclusion of the maintaining period, which was charged as having taken place between 31 July 2015 and 2 January 2018. The complainant told police she was speaking to them because:“…a couple of years ago when I lived with Mum and my brother and Mum’s partner, [the appellant]. He occasionally when Mum was out, in secret. He would use a vibrator on me and he made, he made me, like, promise not to tell Mum.”[1] [1]AB405/45-48. The complainant described a vibrator as a thing “you use on your private parts” and that “it’s supposed to make you feel good”.[2] The complainant said it was used between husbands and wives and boyfriends and girlfriends.[2]AB405/59. The complainant said the vibrator was her mother’s and that it was purple and “like a handle and two little like balls or parts that go out to the side”.[3] The complainant said she did not think her mother knew the appellant used it. When asked if she could draw a picture of it, the complainant said “I don’t really remember what it looks like”.[4] She said she last saw it a couple of years ago, when her mother was out.[3]AB406/73-74.[4]AB406/84. The complainant said the appellant was her mother’s partner. Her mother first met him when the complainant was six years of age, and in grade 1. They lived with him until she was in grade 3 or 4. Her mother had since broken up with the appellant, and the complainant did not see him anymore. The complainant described the appellant as nice, but said he sometimes got too carried away. He liked to wrestle. The complainant said the first occasion the appellant used it he was lying next to her on the bed. The appellant said he “didn’t want to just show [her] something”.[5] He obtained the vibrator, asked the complainant to take her pants and undies off, and showed her how to use the vibrator. The vibrator was placed on the sides of her vagina, for five to 10 minutes.[5]AB408/181. The complainant said when the appellant first used the vibrator on her, he asked her if it felt good, and that before he used it, he asked the complainant to promise to never tell her mother. She did not realise what he was doing was bad. The complainant said she trusted him and thought of him as a second father. The complainant said when the appellant used the vibrator on her she “liked it and it felt joyful”.[6] After the first occasion, the complainant said she would ask the appellant to use it when he came in to say goodnight to her. The complainant said she would ask the appellant to get the vibrator. Sometimes he did, and she would take off her undies and shorts. The complainant said he put it on her vagina and moved it up and down a bit. The complainant said the vibrator was always used in her bedroom, when her mother was out of the house.[6]AB408/170.

Decision

Reasons for decision

The failure to explicitly direct the jury to consider each count separately did not deprive the appellant of a fair chance of acquittal.Conclusions The appellant has established that the failure to direct the jury as to the need to be satisfied of the reliability and credibility of the complainant’s account, beyond reasonable doubt, deprived him of the fair chance of an acquittal. The convictions must be set aside.Orders I would order: The appeal be allowed. The convictions on each of counts 1 and 2 be set aside. There be a retrial on counts 1 and 2. BRADLEY J: I have had the benefit of reading the reasons for judgment of Boddice AJA. They set out fulsomely and accurately the background to this appeal, the counts on the indictment, and the evidence at the trial. I agree with his Honour’s conclusions concerning grounds of appeal 1, 2, 3, and 5. I respectfully disagree with his Honour’s conclusion concerning ground 4. These reasons address only ground 4.Ground 4 As is clear from the reasons of Boddice AJA, the sole evidence on which the appellant’s convictions rest is the complainant’s account. To convict the appellant of count 2, the jury had to be satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s account of the appellant touching her on the alleged first occasion. To convict him of count 1, the jury had to be so satisfied of the complainant’s account that he repeated that conduct on five to ten occasions. The trial judge was obliged to direct the jury to that effect. The appellant submits that no such direction was given. The appellant says the “closest” was the direction given about a motive to lie suggested by the appellant’s defence. The appellant also submits that “the jury would not necessarily have inferred the application of the burden of proof” beyond reasonable doubt to “the task of assessing the complainant’s evidence.” The appellant says this submission is “fortified” by two directions given by the trial judge to assist the jury in their assessment of the evidence. The two directions are said to be: that the jury need not be satisfied of the accuracy of every allegation made by a witness; and that it is for the members of the jury to decide whether and what parts of the evidence they might accept or reject. The appellant also says this submission is strengthened because, he says, her Honour dealt with the assessment of the complainant’s evidence “in general terms applicable to all witnesses in the case” The appellant also submits that the trial judge did not refer to “the degree of reliability, or level of satisfaction, demanded by the burden of proof” in respect of the complainant’s evidence. In support of this contention, the appellant cites the following passage from this Court’s decision in R v Pollard:“The long experience of judges and lawyers who practise criminal law, an experience that jurors cannot be expected to possess, teaches that there are recurring factors in the cases that can render testimony suspect. When factors exist in a case that affect the reliability of evidence, whether for reasons to do with the possible dishonesty of a witness or for reasons to do with sheer reliability, it is the duty of the judge to give the jury the benefit of judicial experience by instructing a jury about the known risks.”[28][28][2020] QCA 188, [28] (Sofronoff P).

Ratio Decidendi

Legal Principle Established

The appellant accepted that during the period he was living with the complainant’s mother, he developed a relationship with her children. There were times when he would speak to the complainant in her bedroom, if it involved putting the children to bed. He denied having a sexual attraction to the complainant. He denied using a vibrator to touch her on five to 10 occasions.ConsiderationGround 1 The appellant sought to adduce evidence, through cross-examination of the complainant’s mother, as to his reaction when the allegations were put to him for the first time. It was accepted that his words of denial were self-serving and inadmissible, but it was submitted his reaction of “surprise, disbelief, shock and fear” was consistent with innocence and, therefore, exculpatory evidence. The trial judge ruled that even if it be accepted that those adjectives properly described the appellant’s reaction on the pretext call, the evidence of his reaction was not probative of anything and was inadmissible. The appellant submits that the trial judge erred in ruling that cross-examination of the complainant’s mother, as to the appellant’s reaction in the late night pretext call, was inadmissible. The appellant submits that although the content of the call was entirely exculpatory, an exculpatory response demonstrative of “surprise, disbelief, shock or even horror”, is admissible as direct evidence of that reaction. The appellant submits that that conclusion is consistent with the observations of McMurdo P in R v MBV.[14][14](2013) 227 A Crim R 49; [2013] QCA 17 at [18], [20]. The appellant accepts there is binding authority contrary to that proposition.[15] The appellant submits those decisions should be reconsidered, in light of a divergent approach elsewhere to the admissibility of a wholly exculpatory and spontaneous reaction to an allegation put to the accused for the first time.[16][15]R v Callaghan [1994] 2 Qd R 300; [1993] QCA 419; R v SCD [2013] QCA 352; R v MCI [2016] QCA 312.[16]R v Storey (1968) 52 Cr App R 334; R v Donaldson (1977) 64 Cr App R 59; R v Pearce (1979) 69 Cr App R 365; R v McCarthy (1980) 71 Cr App R 142; R v Tooke (1990) Cr App R 417; R v Astill (1992) 63 A Crim R 148; R v Reeves (1992) 29 NSWLR 109; R v Familic (1994) 75 A Crim R 229; R v Rymer (2005) 156 A Crim R 84; R v Su & Ors [1997] 1 VR 1; R v Pidoto [2002] VSCA 60; R v Rudd [2009] 23 VR 444; [2009] VSCA 213. In support of this submission, the appellant relies particularly on a passage endorsed by the plurality of the High Court in Nguyen v The Queen,[17] that otherwise:“…the jury would be left to speculate as to whether the accused had given any account of their actions when first challenged by the police.”[17](2020) 269 CLR 299; [2020] HCA 23 at [31]. The observations in Nguyen must be viewed in their context. That context was a consideration of the prosecutorial obligation to present all available, cogent and admissible evidence, where there was admissible evidence available to the prosecution of out-of-court statements of an accused that contained both inculpating and exculpating material.