R v Maddison

Case [2016] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Maddison [2016] QCA 279

PARTIES:

R
v
MADDISON, Steven Robert
(appellant)

FILE NO/S:

CA No 1 of 2015
DC No 285 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 21 November 2014

DELIVERED ON:

2 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2016

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a re-trial of one count of rape, having earlier been convicted of three counts of indecently dealing with a child under his care – where the appellant submitted that various aspects of the complainant’s evidence and evidence given by other witnesses was inconsistent – whether the jury’s verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL –  MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted after a re-trial of one count of rape, having earlier been convicted of three counts of indecently dealing with a child under his care – where the appellant submitted that a miscarriage of justice had occurred as a result of the jury not being discharged after two witnesses gave evidence that was both inadmissible and prejudicial – where the trial judge gave directions addressing this evidence – whether the jury ought to have been discharged

Criminal Code (Qld), s 668E(1)

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited
Greensill v The Queen (2012) 37 VR 257; [2012] VSCA 306, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Maddison v The Queen [2014] HCASL 118, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
R v Agius[2015] QCA 277, cited
R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
R v Maddison[2013] QCA 132, cited
R v RAU[2015] QCA 217, applied
R v SCH[2015] QCA 38, cited
R v Thompson [1983] 1 Qd R 224, cited
R v Thomson[2016] QCA 259, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
G P Cash QC for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the order proposed by Philippides JA and with the reasons given by her Honour.

  2. MORRISON JA:  I have read the reasons of Philippides JA and agree with…

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Details
AGLC
R v Maddison [2016] QCA 279
Case
[2016] QCA 279
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Maddison appeals against his conviction for one count of rape, having previously been convicted of three counts of indecently dealing with a child under his care. The appeal focuses on the contention that the jury’s verdict was unreasonable, given the evidence presented at the trial. The court was required to determine whether the jury’s verdict was unreasonable or insupportable considering the evidence and whether a miscarriage of justice occurred due to the jury not being discharged after two witnesses gave evidence that was both inadmissible and prejudicial.

The court examined the evidence provided by the prosecution, including the testimonies of the complainant and other child witnesses. It was noted that the complainant’s evidence, while detailed, had inconsistencies which the appellant argued made the verdict unreasonable. The court considered whether these inconsistencies were significant enough to render the verdict unreasonable. Additionally, the court addressed the issue of whether the jury should have been discharged after two witnesses gave evidence deemed inadmissible and prejudicial, and whether this impacted the fairness of the trial.

In its reasoning, the court found that despite the inconsistencies in the evidence, the jury's verdict was not unreasonable. The court held that the inconsistencies did not undermine the overall reliability of the evidence provided by the complainant and other witnesses. Furthermore, the court concluded that the trial judge’s directions to the jury adequately addressed the inadmissible and prejudicial evidence, thus there was no miscarriage of justice. Consequently, the appeal against the conviction was dismissed.

The final orders of the court were that the appeal against the conviction for one count of rape was dismissed, and the conviction was upheld.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In November 2014, after a retrial, the appellant was convicted of the count of rape. He seeks to appeal against the conviction on the basis that the verdict was unreasonable.Summary of the evidence at trial Seven witnesses were called by the prosecution at the trial. The appellant elected neither to give nor call evidence. Of the seven witnesses called by the prosecution, three, including the complainant, were children. Their evidence consisted of interviews with police officers recorded on 5 December 2011, two days after the events the subject of the trial, along with evidence given in court and recorded before the trial. As the evidence of the children had been recorded, it was effectively the same as that presented at the first trial of the appellant. The only substantial difference was the removal of any reference to the events that had been the subject of count 3 (the nolle prosequi) and count 4 (the acquittal). There was no disagreement that, otherwise, the taped evidence of the children relevant to this appeal was accurately summarised in the judgment of Muir JA as set out below:[2][2][2013] QCA 132.“[2] The complainant, who was 12 years of age at the time of the alleged offences, gave evidence to the following effect. She slept over at the appellant’s house on the evening of Saturday 3 December 2011. The appellant was referred to by G, a friend of the complainant of a similar age, as her father. He was not G’s father but, because of his relationship with G’s mother, assumed a parental role in relation to G. Also in the house were C, a girl of about 13 years of age, the appellant’s five year old daughter, H, and a young boy, J, aged eight.[3]The appellant told the complainant to hurry and get into the shower. The complainant told him to go out. The appellant told her again to hurry up and remained in the room. The complainant undressed and the appellant left but kept coming back and looking at her. The complainant accepted in cross-examination that the appellant had tried to get H out of the shower and had asked G to try and get her out.[4]During the evening, the complainant played a game of ‘wedgies’ with the appellant and G. After ‘playing around with [G] like giving her [wedgies]’ the appellant ‘pulled [the complainant’s] pants up and then … dragged [her] onto the bed and … gave [her] a [wedgie] … he was lying down and … he was going to pull [her] pants down and [she] said no and [she] tried to get off him but he wouldn’t …’. The complainant described how she was held by the appellant. She said:‘… I then got away after that cause I called [G] out I kept calling [G] out for the whole night so and when he tried to do it well when he played with me um after he did and I told him to stop I went to the bathroom with [G] and told her about it and she told me to stay with her for the night …’[5]The complainant described conduct engaged in by the appellant while G was present. She then said:‘I had long pants and he pulled them down in the bed but the well the [lounge room] bed thing and he tried to play with me well he did play with me and I told him to stop after that because he kept putting his finger up my rude part …’[6]Under further questioning, the complainant expanded on her description of having her pants pulled down and her vagina penetrated digitally.[7]The complainant spoke about being massaged by the appellant when they were under blankets and G, H, C and J were in the room. Asked what part of her body was massaged by the appellant, she said:‘…it was on my tummy first and I think he was trying to roll me over to do my back when I think he didn’t want to do that and then he would stop and then he would go up more until he got sort of over the private part and that [was] when he wouldn’t stop.’[8]Asked what she called ‘that other private part’, she said ‘my breasts’. Count 1 concerned the alleged digital penetration of the complainant’s vulva or vagina while they were on the sofa bed under the blanket and was based on this evidence.[9]Later in the police interview, the complainant said that she thought ‘it was numerous times’ that the appellant put his finger in her ‘rude part’.[10]…[11]…[12]Under cross-examination, the complainant gave the following evidence. She spoke to G about the appellant’s conduct on the evening of the incident. Then she told another classmate about it at school. The complainant was called up to the principal’s office and asked by the principal about a rumour. Questioned about what she understood by the word ‘rape’, she replied, ‘That it’s sexual intercourse when someone’s touched you when you don’t like it’. The complainant accepted that she told the principal that G was it making up. She accepted also that when asked by her sister about being inappropriately touched by the appellant, she initially denied it. She said she initially denied the allegations as to the appellant’s conduct because she did not want a particular teacher to find out. She also said that she did not tell her sister because she did not think she was going to believe it.[13]When interviewed by police officers on 5 December 2011, G gave the following account.[14]The weekend before the interview, she and the complainant started ‘mucking around playing around’ at the appellant’s house. The appellant gave them wedgies. She, the complainant, C, J, H and the appellant were sitting around watching movies. H, J and C slept for a time. In the course of the evening, the complainant and G went across the road to the house of a friend of the appellant. After their return, they watched another movie, played a game where they threw a ball at each other and were told by the appellant to go to bed. She ‘went onto the computers’ as did the complainant. The complainant asked the appellant for help to fix a computer. The appellant ‘went down there … and [G didn’t] know what happened in between there’.[15]Asked if they had a wash, G said they had a shower and that the appellant ‘walked into the bathroom … cause I was in there with [H] and … he come in he didn’t … like get naked and come in he … stood on the outside washing [H’s] hair and I told him to get out and he didn’t listen’. She and H were in the shower at the time. After washing H’s hair, the appellant left the bathroom.[16]The complainant asked her to stay with her in the bathroom to make sure the appellant did not come in. The appellant, however, walked back into the bathroom but the complainant ‘didn’t tell him to get her (sic) out or anything’. G spoke of subsequently being in the lounge room watching a movie with J, C, H, the appellant and the complainant. She was on one side of the complainant on a sofa bed and the appellant was on another. The complainant and the appellant were under blankets. She was not. She did not feel any movement on the sofa bed.[17]The appellant massaged C’s, the complainant’s and her heads. At around this time, the complainant ‘started cuddling into’ her and the appellant moved from the bed and lay on the floor with G and the complainant. At around this time she could hear the complainant’s ‘shirt go up and down’ and she thought the appellant was rubbing the complainant’s back. This continued for a substantial period of time. There was an occasion on which the appellant was ‘over near the piano’ and the complainant was in front of him. The complainant ‘told him to stop it and … that’s what felt weird’. The appellant asked ‘why’ and the complainant replied ‘because I don’t like it’. The appellant said ‘Okay’.[18]Asked in cross-examination if the complainant said anything about the appellant touching her that night, she replied ‘She did ask me in the toilet room to stay with her just in case someone was going to come in’. It was clarified that this was when the complainant was having her shower.[19]This exchange occurred in the course of her cross-examination:‘All right. And you never saw him on that sofa touching [the complainant] did you?-- No, I wasn’t paying attention.Well, you were sitting bedside her? Or lying beside her. Was it lying or sitting?-- We – I was lying and then [the complainant] was in the middle and [the appellant] was at the end.All right. And he was right on the edge of the sofa wasn’t he?-- Yep.…And you say you weren’t paying attention, but you saw nothing between him and [the complainant] did you?-- No, I didn’t.All right?-- I was watching the movie called Mean Girls.And [the complainant] never got up and moved off that bed at any point? Off that sofa?-- She got off and moved to go to the toilet and she told me to go with her.Yes?-- She said that he was touching her, but I didn’t believe it at the time.’[20]C, who was 13 at the time of the interview, gave the following account to police on 5 December 2011. She was at the appellant’s house with his daughter H and other children. When she was having a shower in the appellant’s ensuite, the appellant, wearing a shirt and underpants, came in and asked if he could shower with her. She told him to get out. After she had showered and started reading a book, the complainant arrived. Before then, when she and her sister, G, were sitting watching television, the appellant came to give them a kiss. He kissed G twice on the cheek or lips but she ‘didn’t really get a good view of it’. C was kissed on the forehead and after the appellant ‘just stood there’, she ‘pushed him away’. She later observed the complainant, the appellant and G on the sofa or couch; there was a blanket over the three of them. One of the appellant’s hands was under the blanket, the other was outside it.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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