R v Hda

Case [2025] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v HDA [2025] QCA 166

PARTIES:

R
v
HDA
(appellant)

FILE NO/S:

CA No 53 of 2023
DC No 96 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court of Queensland at Gladstone – Date of Conviction: 3 March 2023 (Chowdhury DCJ)

DELIVERED ON:

9 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2025

JUDGES:

Mullins P, Bond and Brown JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of 13 counts of indecent treatment of a child under 16 under 12 years lineal descendant; one count of attempted indecent treatment of a child under 16 under 12 years lineal descendant; and two counts of rape – where the complainant was the appellant’s granddaughter – where the appellant appealed his convictions on the ground that all verdicts were unreasonable and cannot be supported having regard to the evidence – where the appellant argued that proper consideration was not given by the jury to inconsistencies and discrepancies in the evidence of the complainant and as between the complainant and her mother which should have caused the jury to have reasonable doubt – whether the jury was entitled to conclude that guilt on all counts had been proved beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of 13 counts of indecent treatment of a child under 16 under 12 years lineal descendant; one count of attempted indecent treatment of a child under 16 under 12 years lineal descendant; and two counts of rape – where the complainant was the appellant’s granddaughter – where the appellant appealed his convictions on the ground that the learned trial judge erred in failing to grant the application for a mistrial – where the complainant’s mother gave evidence in chief referring to police attending the family home with a warrant – where the trial judge, with whom defence counsel agreed, refused to order a mistrial and did not provide a direction relating to the evidence – where the jury subsequently asked a question and the trial judge directed the jury that they were to concentrate on the evidence and not to speculate – whether the failure to discharge the jury risked a miscarriage of justice

R v Allen (a pseudonym)[2020] QCA 233, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited
R v WCH [2025] QCA 124, cited

COUNSEL:

D V Nguyen with R M Hew for the appellant (pro bono)
S L Dennis for the respondent

SOLICITORS:

Craven Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Brown JA.

  2. BOND JA:  I agree with the reasons for judgment of Brown JA…

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Details
AGLC
R v Hda [2025] QCA 166
Case
[2025] QCA 166
Decision Date

CaseChat Overview and Summary

The appellant, Hda, was convicted of multiple counts of indecent treatment of a child under 16 under 12 years lineal descendant, one count of attempted indecent treatment of a child under 16 under 12 years lineal descendant, and two counts of rape. The complainant was the appellant's granddaughter. Hda appealed his convictions, contending that the verdicts were unreasonable and unsupported by the evidence, arguing that the jury did not properly consider inconsistencies and discrepancies in the complainant's evidence and that of her mother, which should have led to reasonable doubt. The appeal also argued that the trial judge erred in not granting a mistrial due to an irregularity in the evidence and that this failure risked a miscarriage of justice.

The court examined the nature of the discrepancies and inconsistencies in the complainant's evidence, including changes in the details of the incidents reported in different interviews and the lack of initial complaint to police. The court also considered the trial judge's decision not to discharge the jury due to an irregularity in the evidence. The court found that the jury was entitled to conclude that guilt had been proved beyond reasonable doubt, given the probative value of the complainant's evidence. The court noted that the criminal standard of proof applies equally to child and adult witnesses but that the reliability of a child's evidence is assessed differently. The court concluded that the trial judge's decision not to discharge the jury did not risk a miscarriage of justice.

The appeal was dismissed, and the convictions were upheld. The court determined that the jury was properly entitled to find the appellant guilty beyond reasonable doubt, considering the evidence as a whole and the principles of assessing a child's evidence. The court rejected the arguments that the inconsistencies and irregularities in the evidence were so significant as to undermine the reliability of the complainant's testimony or to warrant a mistrial. The trial judge's decision not to discharge the jury was also found to be correct, and there was no miscarriage of justice.

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

The complainant had been interviewed by police on an unrelated matter on 25 February 2021. She made no complaint on that occasion of any sexual assault by the appellant.Complainant’s Evidence A summary of the complainant’s evidence in the s 93A interviews included the following, adopting the order in which they were revealed by the complainant, which is relevant to how the appellant has framed his argument.The First InterviewCounts 15 and 16 After the complainant had spoken to the police the day before, the complainant remembered some things and that she had then talked to her mum about it and told her what the appellant had been doing and showed her. The last time she could remember something happening was on the previous Tuesday when she slept with the appellant. The complainant stated she was sick and started watching a police show on television. The appellant had put his hand down and rested his hand on her chest which she said were also called “boobies”. He moved his hand around and squeezed the right side of her breast. This was the conduct the subject of count 16. At the time, she was wearing a crop top and shorts. Nothing was under the crop top but she was wearing underwear. The appellant also put his hand on her leg and up to her vagina. He moved his hand around and it stayed there for a bit on her vagina and went back down on the top of her shorts. That conduct was the subject of count 15. She also described where she was on the bed and where the appellant was on the bed and what they were watching.Counts 3 and 4 The first time when offending took place was at the appellant’s house before the family were asked to leave. She was eight years of age. She said he did things when she was asleep. She was a light sleeper and kind of awake “[b]ut I can still like, um, see and feel stuff”.[1] Sometimes she would open her eyes and sometimes keep them closed so it looked like she was asleep and she would roll the other way.[2] She was half asleep and half awake at the time and felt the appellant’s hand on her vagina moving around which was like tickling, itching or scratching over her clothing. She was wearing a loose dress with black spots and a rainbow, with underwear underneath. His hand was on the top of her dress. That conduct was the subject of count 3.[1]AB Vol 2 260/35.[2]AB Vol 2 261/1-9. Approximately one week later the appellant did the same with his hand, like scratching and tickling her vagina. She remembered he did that two times. After the first occasion she rolled over the other way so he’d stop but then got uncomfortable and rolled back over. She stated the appellant stopped for a couple of minutes but then did it again. That conduct was the subject of count 4.Count 7 An incident which occurred at a hotel near Australia Zoo and Aussie World during school holidays. She had gone there with the appellant and her brother. There was a big bed which fit two people and a single bed. She slept one night with the appellant and one night in the single bed. On the night she slept with the appellant in the big bed, when she was “half asleep, half awake”[3] the appellant touched her vagina on the outside of her clothes in a similar way to the other incidents she had previously described. The nightie she was wearing had little fairies with pink dresses on who were ballerinas. This was the subject of count 7.[3]AB Vol 2 267/7.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Also relevant to the present case, given the complainant’s age at the time of giving evidence, are the observations of Sofronoff P in R v Allen (a pseudonym)[42] recently endorsed by Bond JA in R v WCH[43] that:“While the criminal standard of proof applies just as much to the evidence given by a child as it does to the evidence given by an adult, it is well understood and accepted that the factors taken into account to assess the reliability of the evidence of young children are not the same as those affecting the reliability of the evidence of adults. A child may not view events with the understanding of an adult, may be unable to recall important details that would be prominent in an adult’s recollection and may lack the linguistic ability to recount events or to explain them. Immaturity may lead a child into avoidance techniques when being questioned. Most importantly, as everyone who has any experience of young children knows, although in common with adults, the recollection of a child will be more accurate close in time to the relevant events, a very young child’s memory of events tends to fade very quickly.Section 93A of the Evidence Act is founded upon the sound assumption that the earliest account given by a young child is likely to be the most accurate account. It is this assumption which justifies a prosecutor asking a child, who is giving evidence pursuant to s 21AK at a later trial, whether the account tendered under s 93A is true and it is the assumption which can justify a jury’s acceptance of an affirmative answer. It is why s 2lAA states, as has already been pointed out, that one of the objects of Division 4A of Part 2 of the Act is to preserve, to the extent practicable, the integrity of the evidence of an affected child. The result of the practice that has developed around the use of the provision is that the jury has, potentially, an accurate account of events because it incorporates the contemporaneous choice of language, knowledge, experience, gestures and demeanour of a child witness rather than the account given by a child appearing as a witness, a long time later in the difficult sitting of a criminal trial, when the account may suffer not only from failures of recollection, the stressors inherent in a formal trial, but also from the effects of gained knowledge, experience and maturity.”Consideration[42][2020] QCA 233 at [21] and [22].[43][2025] QCA 124 at [10] with whom Flanagan JA and I agreed.Ground One The appellant contends that the Court in undertaking its own assessment of the evidence as a whole should conclude that the jury acting rationally should have entertained a reasonable doubt as to the appellant’s guilt. The appellant contends that the probative value of the complainant’s evidence was diminished or undermined by:(a)the complainant’s answers to the police in the first s 93A interview that there were no other incidents and that the appellant had not touched her vagina in any other way than she had described in the first interview, but then described both penile and digital penetration in the second interview. That included saying that additional sexual offending had occurred while staying at the hotel when they visited Aussie World and Australia Zoo;(b)the complainant had said in the first interview that the appellant had not tried to get her to touch him, but then in the second interview said that he had attempted to get her to touch his penis;(c)her evidence that a significant amount of the offending happened while she was asleep;(d)the complainant’s lack of recall as to what she had told police in the s 93A interviews when cross-examined which have been referred above;(e)the delay in making the complaint including the lack of complaint by the complainant in the interview with police on 25 February 2021 about the appellant offending against her raised doubt as the veracity of the complaints made by her; and(f)inconsistencies between the medical evidence and the allegations of sexual offending raised by the complainant.