R v Pat

[2016] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAT [2016] QCA 83

PARTIES:

R
v
PAT
(appellant)

FILE NO/S:

CA No 183 of 2015
DC No 488 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 15 July 2015

DELIVERED ON:

Order delivered ex tempore 11 March 2016
Reasons delivered 5 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2016

JUDGES:

Margaret McMurdo P and Philippides JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore on 11 March 2016:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of three counts of indecent treatment of a child under 16 under care – where the appellant contended that the jury had not been presented with all the evidence from previous trials, including evidence from J – where J gave evidence in an earlier trial about what the complainant told her about the alleged offences and this was inconsistent with the complainant’s evidence – where J’s evidence was not given at trial but the parties made a joint admission acknowledging the inconsistent statement – where the appellant alleged he told his lawyers information which was not put to witnesses – where the appellant alleged he wanted to give evidence but his barrister told him not to – where inconsistencies in the complainant’s evidence did not prevent the jury from accepting her evidence beyond reasonable doubt – whether there was a substantial miscarriage of justice

COUNSEL:

The appellant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

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

1. MARGARET McMURDO P:  The appellant, who was self-represented at the appeal hearing, was convicted on 15 July 2015 of three counts of indecent treatment of a child under 16 under care.  He appealed against his convictions,[1] contending that the verdict was unreasonable or cannot be supported having regard to the evidence.  After hearing the parties’ oral submissions at the appeal hearing, including the appellant’s contention that this appeal may be delaying his release on parole, this Court dismissed the appeal against conviction, stating that it would publish its reasons later.  These are my reasons for joining in that order.

   [1]He initially also applied for leave to appeal against sentence but at the hearing he stated he did not wish to pursue this and the application was refused.

   The evidence at trial

2. A consideration of the appellant’s sole ground of appeal, that the verdict was unreasonable or cannot be supported having regard to the evidence, requires a review of the whole of the evidence at trial.  The appellant is the paternal half-uncle of the complainant who was 12 years old at the time of the alleged offences on 29 March 2013.  The offences were said to have occurred in the downstairs lounge room of the appellant’s unit which he shared with his partner, K, and their young child.  The complainant was sleeping there the night before they were all to visit Australia Zoo.  Count 1 was particularised as the appellant kissing the complainant in the areas of her mouth, cheek and neck.  Count 2 was particularised as the appellant touching the complainant’s breast with his hand.  Count 3 was particularised as the appellant kissing the complainant around her chest area above her breasts.[2]

   [2]AB 194.

3. The complainant’s evidence was contained in two interviews with police on 12 April 2013 which were tendered at trial under s 93A Evidence Act 1977 (Qld).[3] Her cross-examination, which took place remotely and was recorded under s 21AK Evidence Act, took place on 6 May and 27 November 2014.

   [3]Exhibits 1, 2 and 5.

4. She told police that the offences occurred when she spent the night on an inflatable mattress in the downstairs lounge room of the appellant’s home.  She was staying up late watching movies on TV when the appellant came downstairs into the lounge room and sat on an armchair.  Once the movie finished, she asked him to set up his Playstation so that she could watch another movie.  She was lying on her stomach on the mattress facing the TV.  The appellant sat down next to her and she rolled onto her back with her hands under her head.  She told police that he hugged her, was smothering her and she said three times to let her go.  She wriggled away to the corner of the mattress.  He followed, hugged her again and kissed her with an open mouth on her mouth, cheeks and neck, mainly on the right side of her neck.  He did this for about five to 10 minutes while she tried to push him off (count 1).  He put his hand under her shirt and touched and held her left breast, rubbing it (count 2).  He then kissed her chest (count 3).  She told him that she needed to go to the toilet.  She then and locked herself in the downstairs toilet where she brushed her teeth and did her hair, trying to waste as much time as she could.  Half an hour later she came out and told him she was tired and wanted to go to bed.  He tried to hug her again, she said no, and he went upstairs.  She told her friend J about this on the Tuesday of the week before the complainant’s police interview.  She told her Dad and his wife, C, three days before the police interview.

5. When cross-examined in May 2014, she maintained that each offence occurred.  She denied that the appellant had gone to bed leaving her with K.  She said that K did not return to the downstairs lounge room after going upstairs to put the baby to bed.  When asked about inconsistencies in her evidence as to the time of the incident, she said she was not good with time; she was unsure; she was not watching the clock.  She explained that she was scared and worried and wanted to get away; she did not know she would be required to give precise times.  She was confused, both at the time and when giving evidence.  She stated that if it was a dream she would not have been able to feel it.  She agreed that the touching went on for some 25 to 27 minutes although it seemed longer.  She agreed she did not call out to K.  She agreed she told her father in March 2014, about a year after the incident, that the touching started when she shared a lollipop with the appellant and that she did not tell the police about the lollipop.

6. In re-examination she said that she did not tell others about the lollipop because she was embarrassed; she thought it was her fault and had she not shared the lollipop the offending would not have happened.

7. When cross-examined in November 2014, she denied that she told J that things had happened in her room (rather than in the appellant’s downstairs lounge room) and that she had run and screamed and got her Dad.  She said that earlier in 2014 she had a conversation with J, “making sure that she’d got everything that [the complainant] told her straight, that she understood everything.”  J did not remember all the details so the complainant started to tell her about the allegations again.  J interrupted and told the complainant she would “tell them something to make them pity [the complainant]…he’s still going to jail.”  She told J to tell “them” what the complainant told her, because that was the truth, adding that J must have ignored her.[4]

   [4]AB 44.

8. The parties admitted that J was born in June 2002; that police spoke to J on 10 April 2014 when she was in Grade 7; J told police that she remembered a conversation with the complainant at school a year or two earlier during which the complainant told her about the allegations before the court; J said that the complainant had told her the alleged offences happened after the complainant’s uncle walked into her room, after which she ran out and screamed and got her Dad.[5]

   [5]AB 190.

9. The complainant’s father gave evidence that, on 29 March 2013, Good Friday, the appellant lived with K and his child.  The complainant spent the night at the appellant’s house as they had planned a trip the following day to the zoo.  He collected the complainant the following afternoon.  In early April 2013 during a conversation, he noticed that she looked dazed and he asked if she was ok.  She said she wanted to speak to C.  After she spoke to C, the complainant told him that when she was at the appellant’s home he hugged and kissed her.  He asked if the appellant touched her.  She put her hands over her breast area.  He asked if he touched her boobs and she said yes.  He asked if he touched her anywhere else and she said no.  He asked her to describe how he kissed her: “she turned her head and opened her mouth like a French kiss.”  She said she locked herself in the bathroom and waited for him to leave.  She said she wanted to report the matter to police.

10. C gave evidence that the complainant told her the following.  The appellant had touched her in a sexual way.  He hugged and kissed her and touched her boobs.  She was sitting on the bed watching TV.  He got really close and hugged her.  She tried to move away but he got closer.  He kissed her on the lips and touched her boobs.  When she finally got away she locked herself in the bathroom.  She stayed in there for a while, brushing her teeth and hair.  She came out and saw the appellant still sitting on the couch.  She asked him to leave and said that she wanted to go to sleep.  He asked for one more hug goodnight.  She said no and that she wanted to go to sleep.

11. The appellant’s partner, K, also gave evidence in the prosecution case.  She was still in a relationship with the appellant and they now had two children.  She confirmed that the complainant was staying at their house on 29 March 2013 in preparation for a trip to the zoo the following day.  She organised a blow-up mattress for the complainant to sleep on downstairs.  The complainant, the appellant and K watched TV together until about 9.30 pm.  The appellant went upstairs and K followed about 15 minutes later.  The appellant was in their bed upstairs and fell asleep before her; she heard him snoring.  She slept lightly that night and whenever she woke up he was still in bed.  She got up the next morning at 7.00 am.  She said that whilst there was a toilet downstairs it was not a full bathroom; it did not have a shower, a hand basin, toiletries or hair brush, just toilet paper.  Nor did the downstairs laundry have a hair brush or toiletries.  K said the complainant did not have a toiletries bag with her when she arrived.  In cross-examination she agreed that the door to her bedroom was very loud when opened; it would wake her up.  On the way to the zoo the next day, when they passed the turn-off to the complainant’s house K asked her if she wanted to go home or if she still wanted to go to the zoo.  The complainant said she still really wanted to go to the zoo.

12. The appellant did not give or call evidence.

    Other relevant events preceding and during this trial

13. This was the appellant’s third trial.  His first trial commenced in July 2014 but a mistrial was granted and the jury discharged on the basis that the prosecutor exceeded his boundaries during his opening statement to the jury.  The second trial commenced before a different jury panel later that month.  On the fourth day of that trial another application for mistrial was granted and the jury was discharged.  On 7 November 2014 the appellant’s application for a stay of proceedings was refused.

14. Although J’s complaint evidence was ruled inadmissible at the first trial, the defence sought to lead in the present trial that part of it which showed that the complainant had made a prior inconsistent statement, that is, that the complainant told J that the touching occurred in her room and that she ran and screamed and got her Dad.  The prosecution contended that if any of J’s evidence was to be given, all J’s pre-recorded evidence should be led.  The judge in the present trial held that this would be prejudicial in circumstances where neither counsel wished to revisit the earlier ruling of inadmissibility.  Her Honour suggested two possible options: either to edit the recording so that J’s evidence was limited to the complainant’s prior inconsistent statements; or for the parties to make a joint admission in the terms of the inconsistent statement which could be extracted from J’s evidence.[6]  The parties chose the latter course.[7]

    [6]AB 68-69.

    [7]AB 190, Exhibit 4.

    Conclusion

15. The appellant in his written and oral submissions submitted that the appeal should be allowed because a miscarriage of justice arose from the jury not being presented with all the evidence from previous trials, emphasising that the police gave evidence at an earlier trial about his noisy bedroom door.

16. The respondent helpfully prepared a supplementary record book which contained the police evidence at the earlier trial.  The police officer stated that the door in the main bedroom in the appellant’s house had a “slight squeak” when it was opened and closed.  Such evidence could not have been of any significant assistance to the appellant at his present trial.  The complainant’s evidence was that the appellant committed the offending whilst he was watching movies with her in the downstairs lounge room; it was not that he came downstairs after going to bed with K.  In any case, there was no dispute that the appellant’s bedroom door was noisy; K gave this evidence which was not challenged.  This contention was without substance.

17. The appellant complained that J’s evidence should have been given as it would have shown the jury that the complainant was inconsistent.  But the admissions discussed in [8] of these reasons made sure the jury knew of the inconsistency between J’s evidence and the complainant’s evidence, and defence counsel addressed the jury on these inconsistencies.[8]  This contention was misconceived.

    [8]Summing up 9-10, lines 23-5, AB 123-124.

18. The appellant contended that he told his lawyers things which were not put to the witnesses.  He provided no evidence to support that submission.  In any case there is no inflexible obligation on an accused person’s barrister to put to witnesses everything the person tells the barrister if, for forensic reasons, that may be imprudent.  This contention was not made out.

19. He next contended that he wanted to give evidence but his barrister instructed him not to “as they had enough to tell the jury about.”  Again he has provided no evidence to support this contention.  But in any case, the usual practice in criminal trials is that an accused person will discuss with his or her lawyer the advantages and disadvantages of giving and calling evidence before deciding whether or not to give or call evidence.  This seems to have been precisely what happened in this case.  The advice not to give evidence appeared forensically prudent: there were many issues about which the appellant’s counsel could address the jury to suggest that they should not accept the complainant’s evidence beyond reasonable doubt.  The judge’s summary to the jury of defence counsel’s submissions shows that this was competently done.[9]  The appellant’s decision not to give evidence had the distinct advantage that his counsel addressed the jury after the prosecution.  Having elected to conduct the trial in that way, the appellant is bound by the forensic choice he made.  This contention was also without substance.

    [9]Summing up 11-12, lines 29-14, AB 125-126.

20. The appellant contended the guilty verdicts were unreasonable and against the weight of the evidence.  He emphasised the inconsistencies in the complainant’s evidence and between her evidence and that of others, especially the inconsistency with J’s evidence.  The complainant, he argued, was inconsistent as to precisely what time the alleged offending occurred when asked to relate its timing to what was happening in the movies she said they were watching.  He also pointed out that she tried to influence J’s testimony, contending that this showed she was not a witness of credit.

21. These inconsistencies and matters of credit were explored by the appellant’s counsel at trial and were placed before the jury.  She said she was confused and frightened and was not watching the time.  The jury were entitled to accept that explanation for her lack of temporal precision.  They were also entitled to consider that the inconsistency with J’s evidence was either inconsequential or because of J’s unreliability.  Whether considered individually or together, these matters were not such as to prevent the jury from accepting the complainant’s evidence beyond reasonable doubt.  After reviewing the whole of the evidence I am confident it was open to the jury to convict the appellant on each count.  The guilty verdict was not unreasonable or against the weight of the evidence.

22. The appellant next contended that the jury was too quick to reach its verdict.  The jury retired to consider their verdict at 2.44 pm on the second day of the trial.  They indicated to the judge that they wished to hear the complainant’s evidence again and asked if it could be played in a way that was not as distorted as at their first viewing.  The trial was adjourned at 3.33 pm until 9.00 am the following morning to allow this to occur.  It seems the jury heard the evidence the following day from 9 am after which they retired again to consider their verdicts.  They returned with their verdicts at 12.34 pm that day.  None of this suggests that the jury did not conscientiously carry out their duty.  The appellant’s contention that the jury were too quick to return with their verdicts was baseless.

23. In summary, the appellant has not established that the guilty verdict was unreasonable or against the weight of the evidence and nor has he established that any of the matters raised by him, whether individually or in combination, have resulted in a miscarriage of justice.  For those reasons I joined in this Court’s order on 11 March 2016 dismissing his appeal against conviction.

24. PHILIPPIDES JA:  I agree with Margaret McMurdo P’s reasons for dismissing the appeal.

25. BOND J:  I agree with the reasons which McMurdo P has given for the Court’s order on 11 March 2016 dismissing the appellant’s appeal against conviction.