R v Kaf

[2011] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAF [2011] QCA 158

PARTIES:

R
v
KAF
(appellant)

FILE NO/S:

CA No 302 of 2010
DC No 440 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

14 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2011

JUDGES:

Chief Justice, P D McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

1. That the appeal be allowed;

2. That the conviction on count one be set aside;

3. That judgment and verdict of acquittal be entered on that count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted on one count of unlawfully and indecently dealing with a child under 12 years of age being his lineal descendant – where the appellant was acquitted of four other offences of indecently dealing with the same child on the following day – where the events involving acquittals were followed by fresh complaint – where the complaint involved a continuum of conduct extending over both days – whether there is an adequate evidentiary basis for the conviction notwithstanding the acquittals – whether the jury could reasonably distinguish between count one and counts two to five

COUNSEL:

J M McInnes for the appellant
B J Power for the respondent

SOLICITORS:

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

1. CHIEF JUSTICE: The appellant appeals against his conviction, by a jury, on one count of unlawfully and indecently dealing with a child under 12 years of age, being his lineal descendent.  The complainant was the appellant’s then 10 year old daughter.  That offence occurred on the 23rd of December 2008.  The appellant was acquitted of four other aggravated offences with which he was charged, allegedly committed on the following day: three of indecent dealing with the same child, and one of permitting himself to be indecently dealt with by her.

1. The appellant was sentenced to six months’ imprisonment suspended after a period of the one day already served.  The learned primary Judge in this rather unusual case said that he was not ordering further actual imprisonment because of what he regarded as an exceptional circumstance, namely the “extraordinary” nature of the jury’s verdict.  The Judge had earlier said that he could not identify “a rational basis for the jury’s verdict”, drawing the prosecutor’s response that she had “struggled with it also”.

1. The offence of which the appellant was convicted involved, on the 23rd of December 2008, his rubbing his daughter’s chest as she lay during the daytime on a mattress in the downstairs area of the appellant’s unit.  The complainant’s evidence was that the appellant rubbed inside her clothing over a substantial period, up to 20 minutes.  The offences of which he was acquitted involved, on the 24th of December 2008, his rubbing her chest under her top, rubbing her vagina under her underwear, placing her hand on his penis and further rubbing of her chest and vagina.

1. The appellant relies on three grounds of appeal: that the verdict of guilty is unsafe, because irreconcilable with the acquittals; that the Judge erred in refusing to give a Markuleski type direction; and that the Judge erred in not cautioning the jury against propensity reasoning in relation to the following evidence of discreditable conduct.

1. After the events on the 24th of December the appellant, having told the complainant to keep the events to herself, beckoned the complainant into the toilet area of the garage at the unit and partly lifted her singlet top, desisting when she said, “No”.

1. The Judge’s concern about the verdict of guilty rested in the circumstance that the events of the 24th of December, which involved acquittals, “were followed literally immediately by a fresh complaint” to the appellant’s other daughter J, to his former wife S, and to S’s then partner, M.

1. The complainant’s mother’s evidence was that the complainant told her that the previous day (being the 23rd of December 2008) “she was touched on the boob by her father...he made her put her hands down in his pants...he put his hands in her pants”, adding, presumably referring to an event on the following day the 24th of December, “[he] asked for her to go to the computer room and tell (sic) her it’s their secret”.

1. On one approach, that complaint may relate to the offending conduct of the 23rd of December, but not to the further offences committed on the 24th, but that is not clear to me.  The lack of clarity emerges from the flow of the complainant’s complaint as recalled by the mother in her evidence at page 107 of the Record Book:  the complainant “told me that the previous day, she was touched on the boob by her father.  She then continued to tell me that he made her put her hands down his pants, and he put his hands in her pants, and then asked for her to go to the computer room and tell (sic) her it’s their secret”.

1. As I observed during the submissions, it seems to me that that involves the expression of a continuum of conduct extending over both days, and it is really difficult to say that everything except the visit to the computer room and the reference to its being their secret should be read as having happened on the 23rd, rather than the 24th.

1. The complainant’s sister J said that the complainant gave her a similar account but including the incident in the toilet which happened on the 24th.  J said that she “wasn’t sure if it all happened on the Tuesday or if all or part of it happened on Tuesday and on Wednesday”.

1. The complainant’s stepfather M gave evidence that the complainant said that the appellant “had touched her, and asked her to touch him”, on the breast and “between her legs”.  That limited evidence did not distinguish between conduct on the 23rd of December and conduct the following day.

1. The issue in relation to the first ground of appeal is whether there is an adequate evidentiary basis for the conviction notwithstanding the acquittals.  Counsel for the respondent, Mr Power, submitted that the conviction is justified because the evidence of preliminary complaint related to the events of the 23rd of December but not to the events on the 24th of December.  But as I have explained, that did not emerge with sufficient clarity to justify the jury reasonably distinguishing in that way between count 1 on the one hand, and on the other counts 2 to 5.  The summary I have given of the evidence of complaint in my view demonstrates that.

1. Further, there was no apparent difference of significance in the quality of the complainant’s evidence of the events on the respective days, as a perusal of the record shows.  Second, there was no apparent basis for assessing the alleged conduct on the 24th of December as less plausible than that of the day before.  Third, the evidence disclosed no reason why the complainant would advance false allegations in relation to one day but not the other, and fourth, the contention that the evidence of the complaints related to the events of the 23rd of December but not the 24th of December, therefore reflecting on the credibility of the complainant’s evidence in relation to the events of the second day is not, when closely examined, sustainable.

1. I am satisfied that the conviction is therefore inconsistent with the acquittals, and that the conviction should be set aside and judgment and verdict of acquittal entered.  I am reinforced in that view by the misgiving so strongly expressed by the trial Judge, an expression of that misgiving which drew the support of the prosecutor.

1. Notwithstanding Mr Power’s able argument before us, I would order that the appeal be allowed, that the conviction on count 1 be set aside and that judgment and verdict of acquittal be entered on that count.

1. McMURDO J:  I agree.

1. DALTON J:  I agree.

1. CHIEF JUSTICE:  Those are the orders of the Court.