SUPREME COURT OF QUEENSLAND
CITATION:
R v HZG [2021] QCA 292
PARTIES:
R
v
HZG
(appellant/applicant)FILE NO/S:
CA No 127 of 2020
DC No 50 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Warwick – R v HZG [2020] QDC 108 (Barlow QC DCJ)
DELIVERED ON:
23 December 2021
DELIVERED AT:
Brisbane
HEARING DATE:
23 November 2021
JUDGES:
Sofronoff P and Bond JA and Callaghan J
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNSAFE OR UNSATISFACTORY HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty by the trial judge, sitting without a jury, of indecent treatment of a child under 16, under 12, who is a lineal descendant under care – where the indictment charged that the appellant committed the offences between 17 January 2013 and 2 June 2014 – where, as the trial judge observed, the real issue in the trial was whether the evidence of the complainant was reliable – whether, in all circumstances, the trial judge’s findings of guilt were unreasonable or cannot be supported having regard to the evidence
Criminal Code (Qld), s 210, s 632, s 668E(1)
Evidence Act 1977 (Qld), s 93AAK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited
R v Harris[2021] QCA 96, considered
R v O[2001] QCA 40, cited
R v RAK[2012] QCA 26, cited
R v UA[2007] QCA 41, citedCOUNSEL:
The appellant/applicant appeared on his own behalf
S L Dennis for the respondentSOLICITORS:
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Callaghan J and with the orders proposed by his Honour.
BOND JA: I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.
CALLAGHAN J: The appellant stood trial on one count of indecent treatment of his daughter who was either six of seven years old at the time of the offence.[1] After a two day trial before his Honour Judge Barlow QC, sitting without a jury, he was found guilty of that offence. His Honour imposed a sentence of two years and six months imprisonment, which was to be suspended after the appellant had served one year and three months of that term. The appellant, who represented himself before us, appeals the conviction and applies for leave to appeal against that sentence.
[1]The charge was brought pursuant to s 210 of the Criminal Code and contained, as circumstances of aggravation, averments that the complainant was under 12 and that at the time of the offence she was in the appellant’s care.
The principles applicable to an appeal following a conviction after a trial by judge alone were set out by Fraser JA in R v Harris:[2]
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- AGLC
- R v HZG [2021] QCA 292
- Case
- [2021] QCA 292
- Decision Date
CaseChat Overview and Summary
The court considered several grounds of appeal. The first ground argued that there were inconsistencies in the complainant's chronology of events, which, according to the appellant, undermined her reliability. The court observed that such inconsistencies were not unusual in the statements of a child complainant and were adequately addressed by the trial judge. Another ground argued that there was a lack of corroborating evidence to support the complainant's testimony. The court noted that there was no legal requirement for corroboration in such cases, and the trial judge had explicitly taken the lack of corroboration into account, exercising extra caution in accepting the complainant's testimony as true. A further ground claimed that the trial judge failed to consider the complainant's earlier sexualised behaviour, which might have influenced her allegations. The trial judge, however, had considered this issue and concluded that it did not explain the detail in the complainant's account.
After thorough consideration of the appeal, the court found that the trial judge's findings were not unreasonable and were adequately supported by the evidence. The court dismissed the appeal against the conviction and refused the application for leave to appeal against sentence.
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
Orders
Orders of the court
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
His failure to do so must be viewed against the background of the comprehensive submissions that were made by defence counsel. The complainant’s expectation was not emphasised as one of the reasons[30] why his Honour should acquit, and in context it is difficult to see how, sensibly, it could have been.[30]See footnote 25.Ground E – Lack of corroboration The appellant submits that there was no “corroborating evidence” that could support the claim made by the complainant and that therefore, the state of the evidence did “not allow” the learned trial judge “to independently decide on (her) honesty.” There is no legal requirement for corroboration of a witness such as the complainant, nor was his Honour required by any rule of law or practice to warn himself that it was unsafe to convict the appellant on the basis of her testimony.[31] Nevertheless, his Honour did, in the course of considering the significance of the delay in making the complaint, direct himself that:“… It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, I am satisfied beyond reasonable doubt of its truth and accuracy.”[32][31]s 632 Criminal Code.[32]AB 120 at [68]. His Honour also, in the course of considering the submissions by defence counsel (which included identification of the fact that the complainant was entirely uncorroborated, and which urged the need for great care before placing reliance on it) explicitly stated that he was conscious of these matters and agreed that, as the evidence was entirely uncorroborated, he had to be “especially careful” before he accepted it as true beyond a reasonable doubt.[33][33]AB 132 at [84]. In all of the circumstances there is no point to be made about the lack of corroboration.Ground F – earlier sexualisation of the complainant The appellant complained that his Honour failed to consider the potential relevance of the fact that the complainant had, whilst living with her mother, witnessed sexual activity between her mother and L. There was also some evidence that she had, after moving from her mother’s to her father’s, behaved in a sexualised manner with soft toys and with her younger brother.[34][34]AB 102 lines 10-15. In fact, his Honour made express reference to the submission that this incident might have been relevant to the content of the complaint, but pointed out that it could not explain the detail the complainant was able to give about the appellant’s apparent masturbation of his penis and his ejaculation. His Honour concluded that the evidence “did not support the proposition that (the complainant) had transposed to her father sexual activities that she (had) seen before.”[35][35]AB 135 at [104]. No error is detectable in his Honour’s treatment of this topic.“Unsafe and unsatisfactory”[36][36]In written submissions the appellant addressed the statutory formulation and argued that the verdict was unreasonable or cannot be supported by the evidence. The appeal has been considered on that basis.