District Court at Southport – Date of Conviction: 22 August 2019 (McGinness DCJ)
DELIVERED ON:
Date of Orders: 17 April 2020 Date of Publication of Reasons: 21 April 2020
DELIVERED AT:
Brisbane
HEARING DATE:
2 March 2020
JUDGES:
Fraser JA and Bond and Callaghan JJ
ORDERS:
Orders delivered: 17 April 2020
1. The appeal is allowed.
2. The verdicts are set aside.
3. The appellant’s convictions are quashed.
4. Verdicts of acquittal are entered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by a jury of indecent treatment and rape – where the complainant said the offences occurred when she was nine years old – where the complainant disclosed the alleged offending to a friend immediately after it occurred and to a school counsellor when she was 16 – where there were a number of inconsistencies between the complainant’s evidence and evidence given by the friend and the school counsellor – where there was a long delay between the alleged offending and the first complaint to a person in authority – where the appellant gave evidence denying he committed the offences – whether the verdicts are unreasonable or cannot be supported having regard to the evidence
J D Briggs for the appellant S J Bain for the respondent
SOLICITORS:
Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: After a trial in the District Court occupying about one and a half days in August 2019 the appellant was convicted by a jury of indecent treatment and rape committed on one occasion on a date between 30 June 2007 and 8 November 2009. The ground of the appellant’s appeal against those convictions is that the verdicts are unreasonable or cannot be supported having regard to the evidence.
The complainant gave evidence that she was nine when the appellant committed the offences. The complainant frequently played with the appellant’s daughter, J, who lived with her grandmother in a house very close to the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Oliver [2020] QCA 76
Case
[2020] QCA 76
Decision Date
CaseChat Overview and Summary
In the case of R v Oliver, the appellant was convicted by a jury of indecent treatment and rape. The complainant testified that the offences occurred when she was nine years old. She had disclosed the alleged offending to a friend immediately after it occurred and to a school counsellor when she was 16. There were a number of inconsistencies between the complainant’s evidence and the evidence given by the friend and the school counsellor. There was also a long delay between the alleged offending and the first complaint to a person in authority. The appellant gave evidence denying he committed the offences. The court was required to decide whether the verdicts were unreasonable or could not be supported having regard to the evidence.
The court identified several aspects of the evidence that contributed to its conclusion. Firstly, there were inconsistencies regarding the location of the offending. The complainant claimed to have slept in a specific room, but other evidence contradicted this. Secondly, the contextual and physical features of the offending were questioned. Thirdly, there were inconsistencies and inadequacies in the evidence concerning the complaint. Fourthly, the long delay in reporting the offences raised concerns about the reliability of the evidence. Lastly, the appellant's sworn denial added to the doubt surrounding the case. The combined effect of these factors led the court to conclude that the verdicts were unreasonable and could not be supported by the evidence.
The court found that the evidence did not establish the complainant's claims with sufficient certainty. The inconsistencies and inadequacies in the evidence, along with the long delay in reporting the offences, created reasonable doubt about the appellant's guilt. The court held that the jury should have recognised these issues and entertained a reasonable doubt. Consequently, the court allowed the appeal, set aside the verdicts, quashed the convictions, and entered verdicts of acquittal. The final orders were delivered on 17 April 2020.
Orders
Orders of the court
Orders delivered: 17 April 2020
1. The appeal is allowed.
2. The verdicts are set aside.
3. The appellant’s convictions are quashed.
4. Verdicts of acquittal are entered.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
However, whilst those considerations may well explain the verdict, they do not ultimately form an essential part of the reasoning from which my conclusion follows. That conclusion is informed by the combined effect of four different aspects of the evidence, and reinforced by a fifth. They are:(a)The state of the evidence said to establish the location of the offending;(b)The contextual and physical features of the offending;(c)Inconsistency and inadequacy of evidence concerning the complaint;(d)The delay and the dangers created by it; and(e)The appellant’s sworn denial.The state of evidence said to establish the location of the offending The complainant was asked about sleeping arrangements at J’s parents’ house (meaning the house shared by the appellant and J’s mother, “M”). She said that she slept in J’s room with her – J sleeping on a single bed and the complainant on an air mattress on the floor. She said that the offending had taken place outside J’s room. She identified J’s room on a sketch which she prepared. J’s evidence was unsatisfactory in many respects. But it was not ambiguous as to the fact that she did not have a bedroom at her parents’ house.[45] Her concessions as to lack of memory were made in the context of responses to questions which allied reference to the bedroom with other matters. To my mind, J’s evidence clearly contradicted the complainant’s evidence about the existence of a room in which she claimed to have slept,[46] and to have entered[47] immediately after the offending had allegedly occurred.[45]ARB page 128 line 6. Her statement: “I didn’t have a bedroom there” was made during cross-examination, but was volunteered, and did not result from the adoption of a leading question.[46]ARB page 84 line 6.[47]ARB page 88 line 5. J’s evidence in this respect was consistent with the evidence of the appellant, who swore that J did not have a bedroom at the house. Further, the appellant said that J slept in the lounge room or “in the room with me and M sometimes”.[48] Neither of these propositions was challenged by counsel for the Crown; nor did the prosecutor suggest any basis upon which this aspect of the appellant’s evidence might be discounted.[49][48]ARB page 150 line 10.[49]Nor in fact was J’s clear evidence on this point directly confronted in the closing address of the Crown prosecutor, who allowed that J was a “little confused” (ARB page 32 line 6) or a “bit confused” (ARB page 34 line 3) but was ultimately to commend complete acceptance of another unambiguous aspect of her evidence – see [69] below. To my mind the evidence of J and the appellant did reduce the probative force of the complainant’s evidence, which cannot be explained away on the chance that, by referring to J’s room, she was in fact referring to J’s parents’ bedroom. Nor is it possible, in a case that was furnished by few particulars, to downplay the significance of the way in which the location of the offending was identified.The contextual and physical features of the offending
Decision
Reasons for decision
The evidence does not record whether the appellant took part in an interview with police, but in my view a fair appraisal of the situation is that “an innocent man could have done no more”[78] than he did by giving evidence and providing reasonable answers to all questions that were asked fairly. Especially is this so when he was defending himself against a spare allegation about something said to have occurred approximately 12 years previously, and in circumstances where the prosecution did not bother itself to so much as produce a photograph of the crime scene, still less to produce material witnesses to testify – as the appellant himself did.[78]M v The Queen (1994) 181 CLR 487, 500, per Mason CJ, Deane, Dawson and Toohey JJ.Conclusion In any case, it was not for the appellant to prove his innocence. It is not suggested that anything in his evidence actually advanced proof of the prosecution case. In fact, to my mind it did add to the accumulation of circumstances which called into question the reasonableness of the verdict, but the doubt which ought to have been held by the jury was present as at the time the Crown closed its case. It is at that point that the “sense of unease” [79] which has been described in cases of this nature should already have been felt. The case proceeds on the assumption that the evidence of the complainant was assessed by the jury as credible and reliable.[80] It does not, however, withstand an examination of a record which reveals contradictions in evidence as to where the offence took place, some implausibility in the events as described, an inconsistency in the nature of the complaint, and inadequacies in the evidence – such as the lack of any support for the complainant’s assertions about blood. These combine to present what should have been a “solid obstacle” in the path of reasoning towards a conclusion of guilt.[81] The jury, acting rationally and unaffected by the undoubtedly emotional circumstances of the trial, ought to have recognised that and entertained a reasonable doubt as to proof of guilt. I would set aside the verdicts, quash the convictions and enter verdicts of acquittal.[79]R v Jones (1997) 191 CLR 439, 469; R v Dyer (2002) 210 CLR 285, 76 per Kirby J.[80]Pell v The Queen [2020] HCA 12 per the Court at [39].[81]R v Shah [2007] SASC 68, [4] per Doyle CJ; R v Klamo [2008] VSCA 75, [40] per Maxwell P; R v Place [2015] SASCFC 163, [79] per Sulan, Peek and Lovell JJ; Gant v The Queen [2017] VSCA 104, [109] per Weinberg, Priest and McLiesh JJA.