R v NZ

[2021] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v NZ [2021] QCA 180

PARTIES:

R
v
NZ
(appellant)

FILE NO:

CA No 285 of 2020
DC No 189 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 20 November 2020 (McGinness DCJ)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2021

JUDGES:

Fraser, Morrison and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of grooming a child under 16 years and two counts of indecent treatment of a child under 16 years, under care – where inconsistencies and discrepancies within the complainant’s evidence were highlighted for the jury at the trial – where there was evidence demonstrating the appellant’s sexual interest in the complainant and the appellant’s preparedness to act on that sexual interest – whether the verdicts were unreasonable or unsupported by the evidence

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

COUNSEL:

The appellant appeared on his own behalf
C M Cook for the respondent

SOLICITORS:

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

1. FRASER JA:  I agree with the reasons for judgment given by Mullins JA and the order proposed by her Honour.

2. MORRISON JA:  I have read the reasons of Mullins JA and agree with those reasons and the order her Honour proposes.

3. MULLINS JA:  The appellant was convicted after trial before a jury in the District Court of one count of grooming a child under 16 years (count 1) and two counts of indecent treatment of a child under 16 years, under care (counts 2 and 3).  Although the appellant was represented at his trial, he appears for himself on this appeal against his conviction.  The only ground set out in the notice of the appeal is that the verdict was unsafe in all the circumstances.  On the basis of the matters raised in the appellant’s written outline of argument, it is appropriate to approach the appeal on the basis that the ground of the appeal is that the verdicts were unreasonable or cannot be supported having regard to the evidence.

   Background

4. The complainant was born in 2006 and was aged 12 years and in year 7 at school during the period the subject of the charges.  The complainant was friends with the appellant’s daughter and first met the appellant in 2018.  The complainant visited the appellant’s daughter at her home and counts 2 and 3 were alleged to occur when the complainant was visiting at the appellant’s house.  Count 2 was alleged to have occurred on or about 24 April 2018 and the indecent act was particularised as the appellant putting his hand and/or hands on the complainant, pulling her towards him and trying to kiss her.  Count 3 was alleged to have occurred on a date unknown between 8 March and on or about 26 April 2018 and the indecent act was particularised as the appellant putting his hand and/or hands on the complainant and trying to kiss her.  The period particularised for count 1 was between 8 March and 26 April 2018.  During that period the appellant was 42 years old.

   The evidence

5. The complainant’s first s 93A statement was recorded on 1 May 2018 and included the following.  She had known the appellant’s daughter since the end of February 2018.  They became really close and would go over to each other’s houses.  On Monday 23 April 2018 the complainant ended up staying the night at the appellant’s house after jiu jitsu.  She asked for some soup for dinner.  She also ended up staying there on 24 April 2018 and during that night they went out to the movies.  She slept on a mattress in the lounge room.  The appellant slept at the other end of the lounge room.  The appellant’s daughter’s mother was in hospital.  The complainant would talk to the appellant through Facebook, as if she were talking to a friend.  She would mainly do so by texting using her phone.  The complainant would always say “I love you” to her friends and she thought the appellant took her texts the wrong way, because he was old.  The appellant said “I love you” to the complainant.  The first time the appellant said “I love you” to the complainant, he explained to her that “we always say it to our friends like in a friendly way”.  The appellant also did video chats on Facebook with the complainant.  The complainant would have casual talk with him every day.  He bought her bubble gum and a Converse shirt and gave her second-hand shoes from Kmart, because she helped do the lawn.  He dropped a cheeseburger off in the letterbox for her.

6. There had been times during the night when she could not sleep and she needed someone to talk to and she would message the appellant or the appellant’s daughter, depending what time of night it was.  They were like family.  The complainant found the appellant to be friendly and easier to talk to than her own parents.  Apart from saying “I love you” to her, the appellant said in text and conversation that they should go to Canada.  The complainant was asked whether there was any text messages with the appellant about private parts of her body.  The complainant referred to one conversation and “it was kind of like a joke”.  She did not want to say the name of a woman’s part, but when he texted the word, she did not let him finish the sentence before she responded “eww” to the effect that was gross and then he texted “cat”, so that it read “pussy cat”.  When the complainant was asked whether the appellant had ever touched her, she responded to the effect of not that she knew of.

7. As a result of talking with her mother further, the complainant and her mother contacted the police again and a second s 93A statement was taken on 11 June 2018.  At the outset, the complainant explained that she now remembered things that had happened, because she had talked to the appellant’s daughter and they were things that she “didn’t really remember before”.  On 24 April 2018, when the complainant went to the cinema with the appellant and his three children, they returned late to the appellant’s home.  It was between midnight and 1 am.  They had a little bit of food and all went to bed.  It was in this interview that the complainant stated that the appellant would try to make her kiss him sometimes and would always give her hugs.  The complainant said “he would just always give me hugs and stuff and I’m just like, okay back up”.  The complainant referred to two specific incidents.  One was referred to in the trial as the kitchen incident and was the subject of count 2.  It happened when the complainant was helping to cook at the appellant’s home, her friend was in her bedroom and her friend’s brothers were not around.  The complainant described the incident:

   “… he’s just like come up behind me while I’m just stirring pasta I think it was and just goes like oh, give me a kiss, and I’m just like ah no, tried to push away a few times but then he would pull me closer so then I called out to [the appellant’s daughter] and yeah he let go and I just ran out to [the appellant’s daughter] but I didn’t wanna tell her what happened ‘cause I didn’t know if she’ll believe me or not.”

8. The complainant was asked to describe exactly how the appellant came up behind her and responded that “he came up behind me and like wrapped his arms around me, kind of like a backward hug … [a]nd and then tried to turn me around and I tried to push him off kinda …”.  The complainant said the appellant said to her “look the kids aren’t here, ah give me a kiss”.  The complainant identified the kitchen incident as occurring the last time she saw them on 24 or 25 April 2018 and it was either around 7 pm at night or around 11 am in the morning.  When the complainant was asked to explain how she knew the appellant was trying to kiss her, she answered “[o]ne, because he said it and two because like he was leaning in and like, you know when someone goes to like kiss someone and you see it happening”.

9. The other specific occasion that the complainant described in her second interview was referred to as the lounge incident during the trial and it was the subject of count 3.  The complainant could remember that her friend and her friend’s brothers were not around and she was sitting in the lounge room of the appellant’s home on her phone and she stated:

   “… it was at night and he came out to the lounge, and then just like kind of did the same thing but was more like gentle about it, and I just got up and walked away again, and just like, I just got up and walked to the bathroom, …but when we were on the lounge he was like sitting extra close and tried to put his arm around me, and pull me in and like do the same thing like, head to head, nose to nose kind of thing.”

10. During the complainant’s evidence that was pre-recorded on 27 March 2019, a bundle of photographs of pages of Facebook conversations between the appellant and the complainant taken from the complainant’s phone was tendered.  During cross-examination, the complainant stated she had trouble sleeping between 8 March and 26 April 2018 and that she was having difficulties with her mother in March and April 2018.  The complainant was cross-examined on her response to the appellant’s Facebook message “I want to stare in your eyes and stroke your hair … And kiss you … And hold you”.  The complainant explained that her response “lol” which means laugh out loud was because she was “freaked out” and did not know how to reply.  She did not want to make things awkward, when she did think he was “just kidding”.

11. The complainant also confirmed during cross-examination that when she gave the first s 93A interview that her answer to the question whether the appellant had ever touched her was “Not that I know of”.  In relation to the incidents that she referred to in the second s 93A interview, it was put to the complainant that she did not think anything was wrong about them in their context, because it was the appellant being affectionate.  The complainant disagreed with that proposition and responded that she had in her mind that it was wrong, but acknowledged that she did not say anything to the police about it in the first interview.  She explained that, “Because the question that they were asking me, I was thinking of something different.”  When it was put to the complainant that those incidents that she referred to in her second interview did not happen, she disagreed.  The complainant was not challenged about her description in the s 93A interviews of the Facebook messages and conversations between the appellant and her.

12. At the trial, the prosecution tendered into evidence (as exhibit 3) only two of the pages which were photographs of Facebook conversations between the appellant and the complainant otherwise in the bundle tendered during the pre-recording of the complainant’s evidence.  The prosecution relied on these two pages of Facebook messages together with the evidence given by the complainant of the content of other messages and conversations between the appellant and the complainant for the purpose of proving for count 1 that the appellant was grooming the complainant with intent to procure her to engage in a sexual act.  The messages therefore included those in which the appellant told the complainant he loved her.  There was also the message from the appellant to the complainant saying “I want to stare in your eyes and stroke your hair … And kiss you … And hold you”.  There was the exchange that the complainant had referred to in her first interview, where the appellant had messaged the word “pussy”, but when the complainant immediately responded “eww”, the appellant then appeared to complete the message by sending the message “cat”.

13. The complainant’s mother gave evidence that the complainant went to jiu jitsu with the appellant’s daughter.  The complainant’s mother confirmed that the complainant stayed over at the appellant’s house on 23 and 24 April 2018 and returned home at 8.30 pm on 25 April 2018 without having eaten dinner, when the complainant and her mother argued, and the complainant’s mother seized her daughter’s phone and looked at the Facebook and text messages between her daughter and the appellant.  The complainant’s mother called the police.

14. The appellant did not give or call evidence.  The defence case that was the subject of the appellant’s trial counsel’s address to the jury was that the acts alleged to comprise counts 2 and 3 did not occur and that, in relation to count 1, the appellant never had any intention to touch the complainant sexually.

    The appellant’s submissions

15. The appellant addresses matters on the appeal that were, in fact, put in argument by his trial counsel to the jury and submits that the evidence was not to a sufficient standard to justify guilty verdicts.  I will deal with some of the specific matters raised by the appellant in summarising his submissions, before dealing with the balance, when considering whether the verdicts were unreasonable or unsupported by the evidence.

16. First, appellant submits that the complainant was unreliable in her statements as to the timing of the events that occurred on 24 and 25 April 2018.  The appellant’s counsel at trial had drawn the jury’s attention to the complainant’s evidence that count 2 was committed when she was cooking pasta at the stove, but on 24 April 2018, the complainant went with the appellant’s family to see a movie and they stayed out quite late, so that dinner was not cooked on that evening.  The trial submissions overlooked the complainant’s evidence that the occasion may not have been in the evening of her stay, but at 11 am.  The complainant was otherwise firm about the kitchen incident occurring on her last visit to the appellant’s home, even though she was not certain about the timing of the incident within that visit.  That was a matter for the jury to take into account in assessing the reliability of her evidence.

17. Second, the appellant describes the complainant’s evidence to the effect that the appellant was attempting to kiss her as “unsubstantiated” and the evidence was “speculative and theoretical”.  The submission overlooks the other aspect of the complainant’s evidence about the kitchen incident when she said that the appellant actually asked her to kiss him.

18. Third, as to the Facebook messages, the appellant submits that they were mostly about everyday things and not sufficient to show the intent to manipulate the complainant to succumb to anything of a sexual nature, and there were no sexual photos or any direct talk about sex having sexual contact, and it was easy to misconceive a message as a sexual reference in the absence of context.  Again, the absence of sexual photos or direct talk about sex was an argument put by the appellant’s trial counsel to the jury.

19. In relation to the Facebook messages, the appellant seeks to rely on a concern expressed by the trial judge in the absence of the jury raised with counsel that exhibit 3 comprised two pages of text messages and queried that there was “splintering” of conversations and a concern about lack of context for the messages about the pussy cat.  The prosecutor at the trial believed that the only messages tendered through the complainant during the pre-recorded evidence were those two pages.  That was not correct.  On any view, limiting the photographs of the Facebook messages before the jury to the two pages that comprised exhibit 3 was to the appellant’s benefit.  There was no complaint at the trial by the appellant’s counsel that the only two pages of Facebook messages in evidence were exhibit 3 and that was also consistent with the approach at the trial on behalf of the appellant not to challenge the content of the messages and conversations given in the complainant’s evidence.

20. Fourth, the appellant relies on the complainant’s statement in her first interview that the appellant never touched her at all from which she resiled in her second interview, when she provided the statement about the kitchen incident and the lounge room incident.  Again, this submission reflects the argument put by the appellant’s trial counsel to the jury about the reliability of the complainant’s evidence about the kitchen incident and the lounge room incident, when they were only disclosed in the second interview after the complainant had conferred with the appellant’s daughter and also with the complainant’s mother.

21. Fifth, the appellant disputes the relevance placed by the prosecution on the gifts or treats given by the appellant to the complainant.  This was a matter for the jury to consider in the context of all the evidence before them.

22. Last, the appellant raises the issue that the complainant may have been influenced by others such as her mother to change her view about her dealings with the appellant that resulted in the second s 93A statement.  That was clearly put in argument by the appellant’s trial counsel to the jury.

    Were the verdicts unreasonable or unsupported by the evidence?

23. As the appellant submits, in effect, that the verdicts are unreasonable or cannot be supported having regard to the evidence, it is necessary for this court to examine independently the whole evidence to determine whether it was open to the jury to be satisfied of the appellant’s guilt, but having regard to the pre-eminent position of the jury: Pell v The Queen (2020) 268 CLR 123 at [39].

24. The applicant’s contentions about inconsistencies and discrepancies within the complainant’s evidence and other ways of viewing the dealings between the appellant and the complainant were highlighted for the jury at the trial and were quintessentially jury questions.

25. Dealing with counts 2 and 3, the complainant had explained in cross-examination why she did not speak about the kitchen incident and the lounge room incident in the first interview.  It was open to the jury to use the Facebook messages which were in evidence or otherwise described by the complainant in her evidence and the treats that the appellant gave her including the cheeseburger and buying her a Converse shirt as proof the appellant had a sexual interest in the complainant and was prepared to act on that sexual interest, as making it more likely that the appellant committed counts 2 and 3.

26. The question of whether the conduct the appellant engaged in by way of the messages and conversations was done with intent to procure the complainant to engage in a sexual act was a matter of inference to be drawn from the relevant evidence.  The prosecution case did not depend just on the messages themselves, but on the treats the appellant provided to the complainant, the complainant’s evidence in the second interview that the appellant would give her hugs all the time and the circumstances of the kitchen and lounge room incidents.  At the trial, the appellant’s counsel was left to describe to the jury that the appellant’s messages were “weird”.  They were sent, however, in the context of the appellant being the father of the appellant’s school friend where there was a difference in age of some 30 years between the appellant and the complainant.  In all these circumstances, it was open to the jury to draw the inference that was required beyond reasonable doubt to prove the intention that was necessary to establish count 1.

27. In respect of each of the counts, it was open to the jury to accept the evidence of the complainant as credible and reliable and therefore not unreasonable for the jury to return verdicts of guilty in respect of each count.  This is not a matter where there is a significant possibility that an innocent person has been convicted, because the evidence did not establish guilt beyond reasonable doubt: Pell at [9].

    Order

28. It follows that the appeal must be dismissed.