R v Oaa

Case [2023] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v OAA [2023] QCA 244

PARTIES:

R
v
OAA
(appellant)

FILE NO/S:

CA No 235 of 2022
DC No 440 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 4 October 2022 (Clare SC DCJ)

DELIVERED ON:

5 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2023

JUDGES:

Mullins P and Boddice JA and Martin SJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty by jury of five counts of indecent treatment of a child under 16 (expose), under 12, under care, four counts of indecent treatment of a child under 16 (procure), under 12, under care, five counts of rape and one count of indecent treatment of a child under 16 (procure), under care – where the appellant was found not guilty by jury of one count of indecent treatment of a child under 16 (procure), under 12, under care – where most of the offending occurred in the context of sexual conduct between the appellant, his son and the complainant – where the complainant’s foster father was the appellant’s brother-in-law – where four witnesses gave evidence at trial of preliminary complaint – where the appellant submits the complainant’s narrative was fundamentally damaged by variances in his account to the preliminary complaint witnesses – where those variations included the complainant’s description of the offending and the period within which the offending occurred – where, it is submitted, there were other inconsistencies arising from the evidence of the appellant’s son and his express denial of any sexual activity – whether, having regard to those variations, the verdicts are unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant unsuccessfully made application for leave to cross-examine the complainant as to consensual sexual activity with the appellant’s son pursuant to section 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) – where the appellant submits any consensual sexual relationship with the appellant’s son would have been expressly denied by the appellant’s son, thereby being fundamentally relevant to the complainant’s reliability – where the jury already had before it express denials by the appellant’s son of any sexual relationship with the complainant, consensual or otherwise – where such an issue was peripheral to the complainant’s credibility – whether cross-examination in respect of a consensual sexual relationship with the appellant’s son had the capacity to likely materially impair the reliability of the complainant’s account – whether the trial judge erred in refusing the application

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

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied

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R v Oaa [2023] QCA 244
Case
[2023] QCA 244
Decision Date

CaseChat Overview and Summary

The appellant appeals against his conviction for various counts of indecent treatment and rape of a child under 16, under 12, and under care. The appeal was brought to the court on two grounds: first, that the verdicts are unreasonable and cannot be supported having regard to the evidence, and second, that the trial judge erred in refusing an application to cross-examine the complainant about a consensual sexual relationship with the appellant's son. The court was required to decide whether the guilty verdicts were unreasonable and whether there was an error in the trial judge's refusal to allow cross-examination on the alleged consensual sexual relationship.

The court found that the verdicts of the jury were not unreasonable and that there was no material risk that an innocent man had been convicted. The complainant's account was consistent in all material respects with what he had told police and with what he had told his partner and his foster parents. The court also found that the trial judge did not err in refusing leave to cross-examine the complainant in respect of an alleged consensual sexual relationship with the appellant's son, as such an issue was peripheral to the complainant’s credibility. The jury had before it express denials by the appellant's son of any sexual relationship with the complainant.

The appeal is dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals his convictions. He relies on two grounds. First, that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence. Second, that the trial judge erred in refusing an application to cross-examine the complainant as to consensual sexual activity.Background The appellant was aged 62 at sentence and between 38 and 42 at the time of the commission of the offences. All of the offences, which related to the same male complainant, were committed between 1 June 1999 and 1 March 2003. The complainant was aged between eight and 12 years at the time of the offending. Most of the offences occurred in the context of sexual conduct also taking place between the appellant and his son, TO. TO was also aged between eight and 12 years at the time of the offending.Counts Counts 1 to 9 arose out of one episode on a date unknown between 1 June 1999 and 1 September 1999. The acts were committed at the appellant’s residence when the complainant was eight years of age and in grade 3. The episode occurred after the complainant played Xbox with TO. The acts were particularised as:(a)TO giving oral sex to the appellant (count 1);(b)the appellant putting his penis in the complainant’s mouth and making the complainant perform oral sex (count 2);(c)the appellant having anal intercourse with the complainant (count 3);(d)the appellant having anal intercourse with TO (count 4);(e)the appellant making the complainant put his hand on TO’s penis (count 5);(f)the appellant telling the complainant to put his penis in TO’s mouth (count 6);(g)the appellant anally raping the complainant again (count 7);(h)the appellant making TO put his penis in the complainant’s mouth again (count 8); and(i)the appellant ejaculating on TO’s buttocks (count 9). Counts 10 to 16 were committed about one month later, again, after playing a game on Xbox. The acts were particularised as:(a)the appellant masturbating in front of the complainant (count 10); (b)the appellant having TO perform oral sex on the appellant (count 11); (c)the appellant having the complainant perform oral sex on the appellant (count 12); (d)the appellant directing TO to play with the complainant’s backside, including digital penetration (count 13); (e)the appellant having anal intercourse with TO (count 14);(f)the appellant making the complainant perform oral sex on TO (count 15); and(g)the appellant penetrating the complainant’s anus (count 16), before telling TO to put his penis into the complainant’s mouth. Counts 17 to 19 arose out of a third episode at the appellant’s residence, about two or three weeks after the complainant’s grandfather died on Christmas Day. The acts were particularised as:(a)the appellant having the complainant masturbate the appellant (count 17);(b)the appellant performing oral sex on the complainant (count 18); and(c)the appellant having anal intercourse with the complainant and ejaculating on the complainant’s stomach (count 19).Trial

Evidence

Evidence Before The Court

During the course of the trial the Crown entered a nolle prosequi in respect of counts 11, 13 and 15. The complainant did not give evidence of any of those acts at trial.EvidenceComplainant The complainant gave evidence that the appellant was the husband of his foster father’s sister; that when he was in grade 3 in 1999, he attended school with TO, who he regarded as his cousin; that TO was some months younger than the complainant; that during that period, the appellant resided with his partner, RO, and TO; that the complainant would spend a lot of time at their house; and that, at the time, the appellant and RO were using the lounge room as their bedroom. The complainant said the appellant sexually assaulted him on three occasions. The first occasion occurred when he was eight and in grade 3. It was in mid-July because it was “the show time”. It happened during the school holidays, when the complainant was staying at the appellant’s residence for three days. The complainant was playing a game called Taxi on Xbox in TO’s bedroom. After playing the game for about an hour, TO left the bedroom. Roughly five to 10 minutes later, TO opened the door and asked the complainant to come outside. The complainant described TO’s face as having a scared look. It was a face he had never seen before. The complainant said he walked outside and saw the appellant on his bed in the lounge room. The appellant was naked and had an erection. TO was in front of him, wearing only a shirt. He had on no pants. TO was on his knees giving oral sex to the appellant, who was standing in front of him next to the bed (count 1). After TO performed oral sex for two to five minutes, the appellant had the complainant put the appellant’s penis in his mouth. The appellant pulled the complainant’s head towards the penis, moving his head back and forwards (count 2). The appellant’s penis was hard and erect. It went on for five to 10 minutes. At that point, the appellant told TO and the complainant to get on the bed on their hands and knees. The appellant took off the complainant’s clothes. The appellant spat on his penis and on the complainant’s anus. The appellant inserted his penis into the complainant’s anus (count 3). It was really, really painful. It lasted five to 10 minutes. The appellant had his hands on the complainant’s hips, thrusting into his body. The complainant did not tell him to stop. He did not yell out. He was scared. When it stopped, the appellant went to TO. The appellant spat on his penis, spat on TO’s anus and inserted his penis into TO’s anus (count 4). TO looked like he was in pain. The appellant was not saying anything, but he was grunting. He told the complainant to put his penis in TO’s mouth (count 6). The complainant was also told to play with TO’s penis at the same time (count 5). This went on for approximately two minutes. At the same time, the appellant was raping TO. The appellant then raped the complainant “a bit longer” by inserting his penis in the complainant’s anus (count 7). The pain was 10 times more. The complainant could smell blood from his anus. The appellant then inserted his penis into TO’s anus again, whilst having the complainant perform oral sex on TO (count 8). TO also performed oral sex on the complainant. It stopped when the appellant groaned, removed his penis from TO’s anus and ejaculated on TO’s bottom (count 9).

Decision

Reasons for decision

In those circumstances, cross-examination in respect of a consensual sexual relationship with TO did not have a capacity to likely materially impair the reliability of the complainant’s account. If the jury did not accept TO’s denial of any sexual activity with the complainant, his denial of a consensual sexual relationship with the complainant is unlikely to have caused any greater impairment in the complainant’s account such that special circumstances existed to allow cross-examination as to credit.Conclusions The verdicts of the jury were not unreasonable. There is not a material risk that an innocent man has been convicted of the offences. Further, there was no error in the trial judge’s refusal to permit cross-examination of the complainant in respect of an alleged consensual sexual relationship with TO.Orders I would order:1. The appeal be dismissed. MARTIN SJA: I agree with Boddice JA.

Ratio Decidendi

Legal Principle Established

The respondent further submits the trial judge did not err in refusing leave to cross-examine on an alleged consensual sexual relationship with TO. Such an issue was peripheral to the complainant’s credibility. In any event, the jury had before it express denials by TO of any sexual relationship with the complainant.ConsiderationGround 1 The determination of a ground that the verdicts of a jury were unreasonable requires an appellate court to undertake an independent assessment of the evidence, as a whole, to determine whether it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of the offences.[1] In doing so, due regard must be afforded to the jury’s special position in seeing and assessing the witnesses.[2][1]M v The Queen (1994) 181 CLR 487, 494.[2]R v Baden-Clay (2016) 258 CLR 308, 329. However, if notwithstanding that special advantage, a consideration of the record as a whole, discloses inconsistencies, discrepancies, or other inadequacies which ought to have caused the jury to entertain a reasonable doubt as to the appellant’s guilt, the verdicts are to be set aside as unreasonable.[3][3]Pell v The Queen (2020) 268 CLR 123, 145. In the present case, a consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of the counts. First, the complainant’s account in respect of the occasions on which sexual activity took place and as to the acts on each occasion was, in all material respects, consistent with what he was recorded to have told police, both in 2018 and 2019, and with what he had told his partner and his foster parents by way of preliminary complaint. That consistency was telling in circumstances where there were three specific occasions and multiple acts on each occasion. There was also evidence that a bed was in the lounge room for a period during renovations, which had commenced in 1999. Second, inconsistencies in his account to Seymour and the preliminary witnesses, as to the date on which the offending took place, were not of a nature which required the jury to conclude that the complainant lacked reliability in respect of the central allegations of sexual offending by the appellant. A witness may be honestly mistaken, having regard to the effluxion of time. Further, in Seymour’s case, there may have been a misunderstanding as to what the complainant said as to when the offending commenced, and as to its frequency, particularly as there was no suggestion Seymour questioned the complainant extensively and there was no suggestion he was afforded an opportunity to review Seymour’s notes. Those matters are also supported by this Court’s observations in R v Miller:[4]“…Honest witnesses are frequently in error about the details of events. Also, it is to be expected that any complainant of a sexual assault would approach the task of confiding [his] story in different ways depending upon the nature of [his] relationship with the person to whom [he] is speaking, the circumstances surrounding that conversation, [his] age at the time of giving the account as well as many other possible factors. Further, a submission of this kind assumes that the witnesses to whom preliminary complaint was made all gave scrupulously accurate accounts while the complainant’s recollection is to be regarded as suspect where it is in conflict with them.”[4](2021) 8 QR 221, [24].