R v NV

Case [2018] QCA 310

SUPREME COURT OF QUEENSLAND

CITATION:

R v NV [2018] QCA 310

PARTIES:

R
v
NV
(appellant)

FILE NO/S:

CA No 299 of 2016
DC No 512 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 19 November 2015 (McGinness DCJ)

DELIVERED ON:

13 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2018

JUDGES:

Fraser and Gotterson JJA and Atkinson J

ORDERS:

1.   The applications for leave to adduce further evidence are granted.

2.   The application to amend the ground of appeal is granted.

3.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was convicted on his own plea of guilty of one count of indecent treatment of a child under 16, under 12, who is a lineal descendent – where the appellant had previously been acquitted of sexual offences in respect of the complainant’s oldest sister – where the appellant seeks leave to adduce new evidence of the complainant and her oldest sister recanting their accounts – whether the evidence is “relevant, credible and cogent” – whether it would be a miscarriage of justice to allow the conviction to remain

Criminal Code (Qld), s 671B(1)(c)

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed
R v Boag (1994) 73 A Crim R 35, cited
R v DBI [2016] 2 Qd R 151; [2015] QCA 83, applied
R v Gadaloff[1999] QCA 286, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v McQuire (2000) 110 A Crim R 348; [2000] QCA 40, cited
R v Wade [2012] 2 Qd R 31; [2011] QCA 289, followed
R v Westphal[2009] QCA 223, cited
R v VI[2013] QCA 218, applied

COUNSEL:

J J Allen QC, with J Lodziak, for the appellant
M Whitbread for the respondent

SOLICITORS:

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

  1. FRASER JA:  I agree with the reasons for judgment of Atkinson J and the orders proposed by her Honour.

  2. GOTTERSON JA:  I agree with the orders proposed by Atkinson J and with the reasons given by her Honour.

  3. ATKINSON J:  The appellant was convicted on his own plea of guilty on 19 November 2015 on one count of indecent treatment of a child under 16 years, under 12, who was his lineal descendant.  He was sentenced on 4 March 2016.

  4. The sentence imposed upon the appellant was two months’ imprisonment followed by two years’ probation.  By the time this matter came on for hearing on 6 June 2018, the appellant had completed both his period of imprisonment and the two years of probation.

  5. On 7 November 2016, the appellant filed an application for extension of time, an application for leave to appeal against sentence and a notice of appeal against conviction.  The proposed notice of…

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Details
AGLC
R v NV [2018] QCA 310
Case
[2018] QCA 310
Decision Date

CaseChat Overview and Summary

The case of R v NV involved the appellant, who sought leave to appeal against his conviction for indecent treatment of a child under 16, who is a lineal descendent. The conviction was based on the appellant's own plea of guilty to the offence which occurred between April 2010 and 17 November 2011 when the complainant was seven or eight years old. The appellant sought leave to adduce new evidence of the complainant and her oldest sister recanting their accounts, arguing it was relevant, credible, and cogent and that allowing the conviction to remain would be a miscarriage of justice. The court had to decide whether the new evidence was sufficient to warrant the grant of leave to adduce further evidence and whether it would result in a miscarriage of justice if the conviction remained.

The court examined the evidence and the arguments presented by the appellant. It noted that the complainant had given evidence in four sections, was subjected to extensive cross-examination, and showed no signs of being coached or lying. The court also observed that the complainant's acknowledgment of not remembering certain elements of her evidence strengthened the argument that she was telling a truthful story and had not been coached. Given the circumstances, the court determined that the new evidence did not meet the threshold of being relevant, credible, and cogent. The court also found that allowing the conviction to remain would not result in a miscarriage of justice.

The applications for leave to adduce further evidence and to amend the ground of appeal were dismissed, and the appeal was dismissed. This decision highlights the stringent criteria that must be met for new evidence to be considered in an appeal and the importance of maintaining the integrity of the judicial process.

Orders

Orders of the court

1. The applications for leave to adduce further evidence are granted.

2. The application to amend the ground of appeal is granted.

3. The appeal is dismissed.

Background

Background to the litigation

On 14 May 2018, the appellant filed a notice of intention to adduce new evidence[1] and, if the new evidence were admitted, an amended notice of appeal seeking only to appeal against his conviction on the ground that:“The evidence admitted by leave on the appeal demonstrates that a miscarriage of justice has occurred.”On the same date he formally abandoned his application for leave to appeal against sentence.[1]Criminal Code s 671B(1)(c).Background The offending to which the appellant pleaded guilty was said to have occurred between April 2010 and 17 November 2011 when the complainant was seven or eight years old.[2] The facts of the offending were agreed in a schedule of facts tendered at the sentencing hearing.[2]The charged period was between 31 December 2009 and 17 November 2011 but it was accepted at sentence that the alleged offending could not have taken place any earlier than April 2010: Appeal Record Book (ARB) 103.09-103.16; ARB 100.20-100.21; and ARB 12.28-13.31. The complainant is the appellant’s biological daughter and was living with the appellant, her mother, who was then the appellant’s partner, and her siblings, two sisters and two brothers. The offending was said to have occurred on an evening when the family were watching a horror movie in the lounge room and the complainant got up to take a shower in the bathroom. The complainant said that while she was naked and waiting for the shower water to heat up, the appellant entered the bathroom and touched her on the vagina. The complainant said that the appellant used both hands and moved them like he was “playing”. The complainant said that she pushed the appellant away and told him to “get lost”. The appellant then touched the complainant on her breasts and she punched him on the nose. The complainant said that the appellant had been drinking that night and that he was “really drunk” and “could hardly stand up”. This offending occurred in the context of investigation of the appellant for similar acts of indecent treatment in respect of the complainant’s two older sisters:1.On 29 February 2012, the complainant’s oldest sister was interviewed by police and disclosed that the appellant had touched her vagina after she told the appellant she had a rash.2.On 3 May 2012, the oldest sister was again interviewed and reported that the appellant had inserted a finger into her vagina when observing the rash on her vagina.3.On 28 September 2012, the complainant was interviewed by employees of the Department of Child Safety and denied that the appellant had touched her in her private parts.4.On 1 October 2012, the complainant’s oldest sister participated in a third interview with police. Her complaint remained essentially the same.5.On 11 October 2012, the complainant participated in an interview with police. She spoke with police for the first time about the matter the subject of this appeal.6.On 10 January 2013, the complainant’s second oldest sister was interviewed by police. She disclosed an occasion she was having a shower and the appellant joined her. She did not complain of any sexual offending against her.7.On 4 March 2013, police charged the appellant with offences against the complainant and her oldest sister.

Evidence

Evidence Before The Court

The prosecution of the appellant for alleged offences relating to the complainant’s oldest sister resulted in an acquittal by a jury in the District Court. No charges were ever brought in respect of the complainant’s second oldest sister.Fresh evidence The fresh evidence sought to be adduced by the appellant is evidence of the complainant’s recantation of the allegations and evidence that alleges that the complainant’s mother induced the complainant and her sisters to make false claims against him. The affidavit evidence seeks to establish that the complainant’s mother forced her daughters to make false claims against the appellant to the police and coached them while they were giving pre-recorded evidence to reiterate the claims. Each of the three daughters now say that the accounts were entirely fabricated. In his application for leave to adduce evidence, the appellant applied for leave to adduce evidence from the complainant, who gave evidence in a pre-recording before his plea of guilty was entered, and four other witnesses who did not give evidence at the trial: the complainant’s oldest sister, the complainant’s second oldest sister, Megan Power and Samit Seth. Megan Power is the appellant’s current lawyer on the appeal; Samit Seth was the appellant’s lawyer at trial. The complainant has deposed that:“I made up the story to the police. My mother told me to make up what I told the police and to tell the police that my father touched me. I made up the story about this happening in the bathroom.…Before I gave evidence at Court my mother told me what to say in Court.When I was giving evidence to the Court I asked for a toilet break. During that break I told my mother and the support worker who was sitting in the room where I was giving evidence that I didn’t want to give evidence any more. I told my mother and the support worker that I couldn’t remember the lies I originally told the police.During the break my mother and the support worker re-read to me what I had said to the police in the police interview. My mother told me to tell the Court what I told the police.”[3][3]Affidavit of [the complainant] affirmed 20 December 2017 at [10], [12]-[14]. The complainant’s oldest sister has deposed that:“My mother took me to talk to the police on three occasions and I told the police that I had a medical issue and I told my father about it and he had checked me in the way I described to the police. My mother told me to say this before I spoke to the police each time. My father did not touch my vagina. He took me to see a doctor.It seemed like my mother was making a bigger thing out of it than I explained it was. I do not know why my mother did this.When I went to give evidence by videolink at the Caboolture Courthouse on 24 February 2015 I was in a room with my mother and a support person before giving evidence. This support person wasn’t the same support person who was in the room when I was actually giving my evidence.My mother and the support person were prompting me about what I should say.They read back to me what I had said to the police about my father checking my vagina before I gave evidence.I believe my mother forced me to give false evidence in Court.Before I gave evidence in Court I told her that I did not want to keep telling lies about what happened.She said that if I didn’t then she would take my son [JNT] off me.Myself and [JNT] were living with my mother at the time.I told my mother that I wasn’t listening to her any more. I got kicked out for two months and she kept [JNT].I ended up living at friend’s houses.Eventually my mother let me visit [JNT]. She said I could keep [JNT] if I said in Court what I told the police. I agreed to do that.”[4][4]Affidavit of [the complainant’s oldest sister] affirmed 18 December 2017 at [11]-[22].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent notes that the complainant was subjected to extensive cross-examination at the pre-recording of her evidence when she was only 11 years of age. An examination of that evidence does not suggest that she was coached or lying.Consideration The complainant’s evidence was given in four sections:1.first, from 10.20 am to 10.43 am, ending when the complainant asked for a break;[24]2.second, from 11.00 am to 11.34 am, ending when the complainant asked for a bathroom break;[25]3.third, from 11.54 am to 12.29 pm, ending when the Court adjourned to deal with counsel’s submissions;[26] and4.fourth, from 2.23 pm to 2.59 pm.[27][24]ARB 20.36.[25]ARB 36.14.[26]ARB 50.07.[27]ARB 76.28. The complainant acknowledged at the beginning of her evidence that she watched a copy of the recording of her police interview two days earlier, on Monday 23 February 2015.[28] She specifically denied having access to the transcript of that recording.[29][28]ARB 11.14.[29]ARB 49.15-49.25. Further, it is noted that the transcript of her evidence does not show any signs that, as the complainant now says in her affidavit, she could not recall “the lies” she was coached to say by her mother. After the appellant’s counsel at trial asked the complainant to repeat what had occurred, she said that she did not want to say it but that she remembered “all of it” and “every single bit”.[30][30]ARB 48. 22. The complainant frequently acknowledged that she could not remember certain elements of her evidence, but these acknowledgements do not harm the complainant’s credibility; rather, they strengthen the argument that she was telling a truthful story and had not been coached. In her cross-examination, the complainant acknowledged not remembering the following:1.how old she was when she moved to the home in Eagleby;[31][31]ARB 12.34-12.35.2.how long she had lived at the Eagleby home;[32][32]ARB 13.20-13.21.3.whether she spoke to the police while they lived at Mudgee;[33][33]ARB 14.14-14.20.4.speaking with officers from the Department of Child Safety in September 2012 prior to being interviewed by police;[34][34]ARB 15.14-15.26.5.an incident in which she had described in her police interview as her father sleeping on the ground;[35]6.whether the bathroom door at the house in Eagleby was lockable or not;[36]7.an earlier incident with the police in which her brother had injured himself on a trailer;[37]8.what she was doing before she went into the bathroom to take her shower, originally,[38] before later being able to summon more details after more specific questions;[39]9.whether the evening of the incident was a weekday or weekend;[40]10.specifics of where in the eighteen month period during which they lived in the house at Eagleby the incident occurred;[41]11.whether she locked the bathroom door or not;[42]12.whether she “shouted out” during the incident;[43]13.whether, after the incident, she stayed in her bedroom or came out;[44] and14.the specific timing of incidents, whereas in the police interview she was able to recall that she returned from her walk after the incident at 7.20 pm and able to infer that the incident occurred at around 6.50 pm.[45][35]ARB 29.19-29.43.[36]ARB 33.29.[37]ARB 41.21-41.22.[38]ARB 62.43-62.44.[39]ARB 64.08-64.22.[40]ARB 63.09-63.10.[41]ARB 63.18-63.28.[42]ARB 65.01-65.10.[43]ARB 70.40-71.14.[44]ARB 72.18-72.31.[45]ARB 74.34-74.39.