R v PBA

Case [2018] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBA [2018] QCA 213

PARTIES:

R
v
PBA
(appellant)

FILE NO/S:

CA No 123 of 2017
DC No 212 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 25 May 2017 (Lynch QC DCJ)

DELIVERED ON:

14 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2017

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

Dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where a jury found the appellant guilty of maintaining an unlawful sexual relationship with a child under 16 years, six counts of unlawfully and indecently dealing with a child under 16 years (with a circumstance of aggravation that the child was under 12 years) and two counts of rape – where the jury were unable to agree upon their verdicts upon three further counts of rape – where the appellant submitted that there was evidence of coaching in the complainant’s evidence – where there were inconsistencies between the complainant’s evidence and other witnesses’ evidence – where the appellant submitted that the complainant admitted in cross-examination that one of the charged offences could not have occurred – where two potential witnesses were not called – whether the verdict was unreasonable having regard to the evidence

R v Clapham[2017] QCA 99, applied

COUNSEL:

M Harrison for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Williamson & Associates Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  After a seven day trial in the District Court a jury found the appellant guilty of maintaining an unlawful sexual relationship with a child under 16 years (count 2), six counts of unlawfully and indecently dealing with a child under 16 years (with a circumstance of aggravation that the child was under 12 years) (counts 3, 4, 7, 8, 9 and 10) and two counts of rape (counts 11 and 12).  The jury were unable to agree upon their verdicts upon three counts of rape (count 1, 5 and 6).  The appellant has appealed against his convictions on the ground that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence.[1]

    [1]The notice of appeal includes six paragraphs of particulars of the ground of appeal.  At the hearing of the appeal the appellant’s counsel abandoned reliance upon those particulars.

    The Crown case

  2. The complainant in the alleged offences was seven years old on Christmas Eve 2012, the date on or about which the first offence (count 1), was allegedly committed.  She was between eight and nine years old when the maintaining offence (count 2) was allegedly committed during a period of about 13 months between 1 June 2014 and 26 July 2015.  Each of counts 3 – 12 alleged that the offence was committed on a date unknown during a specified period.  The complainant was between eight…

Continue reading R v PBA

Sign in free to access the full text

Details
AGLC
R v PBA [2018] QCA 213
Case
[2018] QCA 213
Decision Date

CaseChat Overview and Summary

The appellant, who was found guilty by a jury of maintaining an unlawful sexual relationship with a child under 16 years, six counts of unlawfully and indecently dealing with a child under 16 years, and two counts of rape, sought an appeal against his conviction on the grounds that the verdict was unreasonable having regard to the evidence. The jury were unable to agree upon their verdicts upon three further counts of rape. The appellant argued that there was evidence of coaching in the complainant’s evidence, inconsistencies between the complainant’s evidence and other witnesses’ evidence, and that the complainant admitted in cross-examination that one of the charged offences could not have occurred. The appellant also submitted that two potential witnesses were not called.

The court was required to decide whether the appellant's appeal against his conviction should be allowed. The court considered whether there were any inconsistencies or other issues with the complainant’s evidence that would render the verdict unreasonable. The court found that there was no evidence of coaching and that the inconsistencies in the complainant’s evidence were not sufficient to render the verdict unreasonable. The court also noted that the complainant's mother had questioned her repeatedly, which was a factor the jury could have considered. The court concluded that there was no reasonable basis for a conclusion that there was a reasonable doubt whether the appellant committed any of the offences of which he was convicted.

The appeal was dismissed. The court found that the evidence supported the jury’s verdict, and that there were no reasonable doubts about the appellant’s guilt. The convictions were upheld, and the appeal was dismissed in its entirety.

Orders

Orders of the court

Dismiss the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the complainant’s police interview she said that the last time was about two weeks ago. The appellant was in her room again. He pulled her shorts down. He pulled his shorts down too and started rubbing his penis up against her vagina. The complainant tried to push him away. The appellant pushed her down onto the bed then lay on top of her again. He “started raping me a little bit”. He was moving up and down and his penis was going all over her vagina. The complainant explained that she meant “in” rather than “over”. She said “that stuff came out and it went all … over my [undies] … and then he got my undies and wiped it off and then put my undies in the washing and then um I wanted to go so he let me and then I walked out of the room and my next door neighbour was there so I just went over there”. During the complainant’s pre-recorded evidence, in examination-in-chief the complainant was asked what she meant when she said that the appellant started raping her a little bit. The complainant said that the appellant’s penis was going into her vagina a little bit.Preliminary complaint evidence In the complainant’s police interview she said that her mother found out about “it” on the previous day. The complainant told her mother “basically everything I told you”. There was not anything that the complainant told the police officer that she had not told her mother about. The complainant had not told anybody else other than NDC and her mother. During the complainant’s pre-recorded evidence, in cross-examination: the complainant remembered that on the night before she went to the police station her mother asked her whether the appellant had touched her; the complainant had not told her mother that the appellant had touched her before that day; the complainant’s mother was very upset and crying when she asked the question; when the complainant told her mother something her mother rang the complainant’s grandmother; after that, the complainant’s mother started asking her lots of questions quickly; the complainant wanted to answer her mother’s questions; at that time her mother was upset; and the complainant later found out some things that had happened to her mother when she was a little girl. The complainant’s mother asked whether the appellant had ever put his thing inside her. The complainant said “yes”. The complainant later heard her mother say on the phone that the appellant had raped the complainant. That was the first time the complainant had heard the word “rape”. The complainant agreed that before they went to the police station the next day, her mother asked her about the events several times over and over and talked to the complainant about it many times. Subsequently during cross-examination, the complainant denied the suggestion that she had made things up because of what her mother had asked her. In cross-examination, defence counsel suggested that the complainant had made her account up to tell her mother and that the things she told the policeman she had seen were things she had seen on the internet. The complainant denied both suggestions.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There was evidence (concerning counts 10 and 11) that the bathroom door opened into the kitchen.Consideration In oral submissions the appellant referred to four points which, in addition to points made in the appellant’s outline of submissions, were submitted to justify the conclusion that there are serious doubts about the credibility of the complainant such as to render the convictions unreasonable. The appellant’s first point is that there is evidence of coaching in relation to counts 5 and 7. The appellant disavowed any suggestion that the complainant’s mother had suggested particulars of how offences occurred. The suggested evidence of coaching comprised the complainant’s references to what she was “supposed to say” when she made statements about counts 5 and 7, the evidence that the complainant’s mother asked leading questions about what had occurred, and the complainant’s agreement that she had practised what she had to say in her evidence over and over again. The complainant agreed that her mother questioned her repeatedly and that she had recounted the events over and over again. She did not give evidence that she had “practised” her evidence over and over again. That the complainant’s mother elicited much of the complainant’s account in the way she did, including by questions which referred to forms of sexual abuse, required consideration by the jury. It is also relevant however, that the complainant volunteered details of circumstances which were not suggested by any question asked by her mother. It was reasonably open to the jury to conclude that, the complainant used the expression “I was supposed to say” as meaning “I should have said”, rather than as meaning that someone had coached her about what she should say. The appellant’s second point is that there was an inconsistency between the complainant’s evidence and the evidence of PY that she remembered that the complainant said words to the effect of, “is that you grandad?”, the complainant was in the middle of the bed with the covers up, she did not see anybody rolling around the floor or coming out from under the bed, she saw a shadow she believed to be the appellant exit the room, and she said that the appellant often came in to say goodnight. Those submissions relate to count 1, upon which the jury was unable to reach a verdict. There are a variety of possible explanations for that inability, including that it occurred some two years further into the past than the other sexual offending she described in her police interview and her pre-recorded evidence, she accepted in cross-examination that she might have been mistaken about some details, she acknowledged that some of what she said was what PY had told her, and she was asleep at the commencement of the appellant’s conduct and fell asleep shortly after it ended. There is no reasonable basis for a conclusion that any of those matters, or the inconsistency upon which the appellant relies, requires the Court to conclude that there is a reasonable doubt whether the appellant committed any of the offences of which he was convicted. In circumstances of this kind it to be expected that there will be inconsistencies in the details of honest evidence of events. That is very more likely to occur where, as here, the witnesses were children, the alleged events awoke them, those events may have occupied a very short period of time, and they occurred years before any complaint was made.