R v IH - [2021] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v IH [2021] QCA 247

PARTIES:

R
v
IH
(appellant)

FILE NO/S:

CA No 294 of 2020
DC No 2947 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 October 2020 (Porter QC DCJ)

DELIVERED ON:

19 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2021

JUDGES:

Holmes CJ and Bond JA and North J

ORDER:

Appeal dismissed.

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 relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant in re-examination about overhearing a telephone call immediately before her disclosure of the offending to her mother did not arise from cross-examination and was not apt to qualify facts prejudicial to the prosecution – whether the evidence permissibly clarified matters raised in cross-examination – whether the evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the evidence was properly admitted – whether any miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted by jury of one count of maintaining a relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant’s mother about receiving and asking the complainant about a text message alleging a sexual assault against her, followed by the complainant’s first disclosure of the offending, was outside the ambit of s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 or otherwise ought to have been excluded as irrelevant or unfairly prejudicial – where s 4A(2) renders admissible evidence of ‘how and when’ a preliminary complaint was made – whether the mother’s evidence, apart from one detail, constituted admissible context for the preliminary complaint within the terms of s 4A(2) – whether the admissible evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the prejudice arising from the inadmissible detail was cured by direction – whether any miscarriage of justice occurred

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

R v AW[2005] QCA 152, cited
R v Lavery (No 2) (1979) 20 SASR 430, cited
R v Phair [1986] 1 Qd R 136, cited
R v Riera[2011] QCA 77, cited
R v Singleton [1986] 2 Qd R 535, cited
Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40, cited

COUNSEL:

K Prskalo for the appellant
M J Hynes for the respondent

SOLICITORS:

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

HOLMES CJ: The appellant was convicted by a jury of one count of maintaining a sexual relationship with a child,…

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 IH

Details

AGLC: R v IH [2021] QCA 247
Case: [2021] QCA 247
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of R v IH, the appellant was convicted by a jury of maintaining a relationship with a child. The appeal arose from the appellant's dissatisfaction with the admission of certain evidence during the trial that he claimed was prejudicial and should not have been allowed. The appellant contested the trial judge's decisions to admit evidence from the complainant regarding an overheard telephone call and evidence from the complainant's mother about a text message that she had received from the complainant.

The primary legal issue before the court was whether the trial judge had correctly admitted the evidence in question. The court had to determine if the evidence from the complainant in re-examination about overhearing a telephone call immediately before her disclosure to her mother arose from cross-examination and if it was relevant and not unfairly prejudicial to the appellant. Additionally, the court needed to assess whether evidence from the complainant's mother about receiving a text message and inquiring about an alleged sexual assault, which was followed by the complainant's first disclosure, was admissible under s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 and whether it was probative enough to outweigh any prejudice to the appellant.

The court held that the evidence from the complainant in re-examination was permissible as it clarified matters raised in cross-examination and was not unfairly prejudicial. The court also found that the evidence from the complainant's mother, apart from one detail, constituted admissible context for the preliminary complaint within the terms of s 4A(2) of the Criminal Law (Sexual Offences) Act 1978. The court concluded that any prejudice arising from the inadmissible detail was cured by direction, and no miscarriage of justice occurred. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 4A of the Criminal Law (Sexual Offences) Act 1978 says what preliminary complaint evidence may be given and preserves the discretion to exclude it:“4A Evidence of complaint generally admissible(1)This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.(2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.(3) Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.”Preliminary complaint is defined in s 4A(6) as meaning“…any complaint other than—(a)the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or(b)a complaint made after the complaint mentioned in paragraph (a)”.Appeal ground 1: the re-examination of the complainant The first ground of appeal is that B’s evidence in re-examination regarding what happened just before her complaint to her mother was wrongly admitted because it either did not arise from cross-examination or was not apt to qualify facts prejudicial to the prosecution.The context for the re-examination The prosecutor in her opening outlined B’s mother’s evidence of approaching B with the direct question whether the appellant had ever touched her, B’s affirmative answer and their conversation about the details of the offending. Later, the prosecutor elicited that evidence from the mother, but she did not open or lead any evidence from B about the making of the preliminary complaint. Cross-examination of B established that she had not said anything about the appellant’s conduct to either of her brothers, to a police officer who was the girlfriend of one of her brothers or to her best friend at school, and that some details of her complaint only emerged a fortnight after she made her initial statement to the police. Photographs showing B with the appellant at various family gatherings were identified by her and tendered, and defence counsel elicited from her that the appellant participated in a number of her school and sporting events, sometimes on her invitation. B also confirmed that before making her statement to the police, she had become aware the appellant had had affairs during his marriage to her mother. In fact, she said, she found that out on the very day she made her statement to the police. B agreed that she discovered the appellant had been seeing a woman named Emily and another named Vanessa, and concurred with the possibility that after the marriage was over, he had had a relationship with a woman named Lisa. This question was asked about the circumstances of the preliminary complaint:“…it first came out once your mother asked you about it, didn’t it?”to which B answered “Yes”. It was put to B that although on her account she had told her mother of the offending, she had not told her mother’s partner when he came home. When B responded that she had in fact done so, it was put to her that she had failed to say that to the police, to which she answered that she had not realised that it was necessary.The re-examination of the complainant

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v IH [2021] QCA 247
PARTIES:	R v IH (appellant)
FILE NO/S:	CA No 294 of 2020 DC No 2947 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 13 October 2020 (Porter QC DCJ)
DELIVERED ON:	19 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2021
JUDGES:	Holmes CJ and Bond JA and North J
ORDER:	Appeal dismissed.
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 relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant in re-examination about overhearing a telephone call immediately before her disclosure of the offending to her mother did not arise from cross-examination and was not apt to qualify facts prejudicial to the prosecution – whether the evidence permissibly clarified matters raised in cross-examination – whether the evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the evidence was properly admitted – whether any miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted by jury of one count of maintaining a relationship with a child – where the appellant appeals his conviction on the ground that evidence given by the complainant’s mother about receiving and asking the complainant about a text message alleging a sexual assault against her, followed by the complainant’s first disclosure of the offending, was outside the ambit of s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 or otherwise ought to have been excluded as irrelevant or unfairly prejudicial – where s 4A(2) renders admissible evidence of ‘how and when’ a preliminary complaint was made – whether the mother’s evidence, apart from one detail, constituted admissible context for the preliminary complaint within the terms of s 4A(2) – whether the admissible evidence was sufficiently probative to outweigh any prejudice to the appellant – whether the prejudice arising from the inadmissible detail was cured by direction – whether any miscarriage of justice occurred Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A R v AW[2005] QCA 152, cited R v Lavery (No 2) (1979) 20 SASR 430, cited R v Phair [1986] 1 Qd R 136, cited R v Riera[2011] QCA 77, cited R v Singleton [1986] 2 Qd R 535, cited Wojcic v Incorporated Nominal Defendant [1969] VR 323; [1969] VicRp 40, cited
COUNSEL:	K Prskalo for the appellant M J Hynes for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent