R v HZG - [2021] QCA 292

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 2019

DIVISION:

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 93A

AK 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, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

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]

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 HZG

Details

AGLC: R v HZG [2021] QCA 292
Case: [2021] QCA 292
Decision Date: 23 December 2021

CaseChat Overview and Summary

In the case of R v HZG, the appellant was found guilty by the trial judge, sitting without a jury, of indecently treating a child under 16, who was a lineal descendant under his care. The indictment charged that the offences occurred between 17 January 2013 and 2 June 2014. The central issue in the trial was the reliability of the complainant's evidence. The appeal focused on whether the trial judge's findings of guilt were unreasonable or could not be supported by the evidence.

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

HW also gave evidence that the complainant had displayed “sexualised behaviour” as soon as she moved in (November 2011). She allowed that she was a strict disciplinarian with the result that she and the complainant would fight a lot. Some evidence was given about the location of the “spare room” in which the offence was alleged to have occurred; this founded a submission that it was an unlikely venue for an act of the kind alleged.Reasons for decision The learned trial judge notionally directed himself in accordance with all of the principles that were said to be applicable to a trial like this. These included those required when evidence is pre-recorded,[21] when a defendant does not give evidence,[22] when there has been a significant delay in the making of a complaint[23] and when it is suggested there had been a motive to lie.[24] It is not suggested, nor does it appear that there was any misdirection, or omission to refer to any direction that might have been relevant or necessary.[21]Supreme and District Courts Criminal Directions Benchbook. 10 Child witnesses 93A Statements, AB 121 at [12].[22]Ibid, 27 Defendant Not Giving Evidence, where no adverse inference, AB 129 at [65].[23]Ibid, 69 Delay in prosecution and significant forensic disadvantage, AB 129 at [66]-[68].[24]Ibid, 44 Cross-Examination as to Complainant’s Motive to Lie, AB 129-131 at [69]-[76].Grounds of appeal In fact, as noted the appellant has appealed only on the basis that the conviction was “unsafe and unsatisfactory”. However, in two sets of thorough written submissions, he has identified specific complaints that he advances as “additional grounds”, and detailed consideration has been given to each of these.Ground A – “inconsistencies” In submissions (oral and written) that seemed to cover everything that could possibly have been said on behalf of the appellant,[25] his trial counsel identified inconsistencies in the chronology of events as reported by the complainant. However, as noted by the learned trial judge such inconsistencies “are not unusual in the statements and evidence of a seven year old child (at the time of the preliminary complaints) or a ten year old (when she made her first statement to police).”[26][25]10 individual reasons for acquittal were identified. It was, of course the cumulative effect of these factors that was said to be relevant, as expressed in the written submissions placed before the trial judge (AB 220), there were: a. Involvement of HW (credit). b. When the act occurred (reliability). c. The location (credibility). d. Where the tissues were (reliability). e. Whether there was or wasn’t penetration (credibility and reliability). f. Penis was not erect (credibility) .g. Relationship with stepmother (credibility). h. Previous sexualized behaviour (reliability). i. The ‘mechanics’(credibility). j. No grooming.[26]AB 133 at [91]. One particular inconsistency identified – and upon which some emphasis was placed – was in the complainant’s evidence about the use of tissues at the point of ejaculation. His Honour observed that it was “unlikely that, at the time of the offence (if it occurred), the complainant was concentrating on where the defendant obtained the tissue that he used”. This was, in the circumstances, a fair observation.

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.

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 2019
DIVISION:	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 93A AK 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, cited
COUNSEL:	The appellant/applicant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent