R v Qd

[2006] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v QD [2006] QCA 132

PARTIES:

R
v
QD
(applicant/appellant)

FILE NO/S:

CA No 353 of 2005
DC No 275 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 18 April 2006
Reasons delivered 28 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGES:

McPherson and Keane JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISCARRIAGE OF JUSTICE - GENERALLY - where appellant convicted of indecent treatment of a child under 16, the child in question being under 12 - where complainant was five years old - where complainant's evidence was apt to convey to the jury that the appellant had previously been gaoled for a similar act committed on the complainant - where no direction on this evidence was sought by counsel at trial and where learned trial judge gave no direction - whether in these circumstances the appellant could receive a fair trial with this evidence before the jury and whether there was a miscarriage of justice

Evidence Act 1977 (Qld), s 21AK, s 21AM, s 21AW, s 93A
Criminal Code 1899 (Qld), s 668E

Nudd v The Queen [2006] HCA 9, cited
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, cited
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, applied

COUNSEL:

P J Callaghan SC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I have read and I agree with the reasons of Keane JA.  The appeal should be allowed, the conviction set aside, and a new trial ordered.

1. KEANE JA:  On 14 November 2005, the appellant was convicted after a trial by jury of indecent treatment of a child under 16 years of age, the child in question being under 12 years of age.  On the following day, he was sentenced to nine months imprisonment.  The appellant sought to appeal against his conviction.  The appeal was heard on 18 April 2006.  After hearing argument, the Court decided that the appeal should be allowed, the conviction should be set aside and a new trial ordered.  The Court announced that the reasons for its decision would be published at a later date. 

1. The appellant relied upon the following grounds:

"1. Her Honour the learned Trial Judge erred when she failed to direct the jury in the mandatory terms of Section 21AW of the Evidence Act 1977;

2.          The trial miscarried by reason of evidence which suggested that the appellant had previously been gaoled for the same sort of offence;

3.          Her Honour the learned Trial Judge erred in the direction that she gave the jury on the subject of preliminary complaint;

4.          Her Honour the learned Trial Judge erred when she failed to inform the jury that the appellant had not been sent to gaol because of the offence that he had committed;

5.          Her Honour the learned Trial Judge erred when she failed to direct the jury as to the need for caution in assessing the complainant's evidence;

6.          By reason of the manner in which the appellant's legal representatives advised the appellant and conducted his case, a miscarriage of justice has occurred."

1. I will summarise the evidence at trial before discussing the appellant's grounds of appeal.

The evidence at trial

1. The offence was alleged to have been committed on 21 November 2004. The complainant was the appellant's niece, being the daughter of his half-sister. The complainant was born on 6 February 1999. She was five years old at the date of the alleged offence, and six years of age at the time her evidence was pre-recorded, pursuant to s 21AK and s 21AM of the Evidence Act 1977 (Qld), on 4 July 2005.

1. The complainant's evidence was not given on oath because of her age and evident lack of understanding of the meaning of an oath. 

1. The Crown case was that when the appellant was visiting his sister, who has four children, he volunteered to put his sister's two youngest children to bed.  He put them to bed and left shortly thereafter.  The complainant's evidence was that, while she was climbing a ladder to her bunk, the appellant touched her on the area of her vagina through her clothing.  She said he poked her and she told him to "stop poking" her.  He kept poking her until she had climbed into her bunk.  A somewhat curious aspect of the complainant's evidence was that she said that the "poking" gave her the feeling of "cows inside my fanny".

1. According to the complainant's mother, that night the complainant wet the bed.  This had not occurred for about two months prior to the night of 21 November 2004.  The complainant's mother put her in the shower the next morning.  While the complainant was having a shower, she complained to her mother that she "was touched … on the fanny … [by] Uncle Kimmy".  This evidence was left for the consideration of the jury as evidence of a preliminary complaint.

1. The complainant's mother contacted her husband's brother and his wife and informed them of the complainant's allegation against the appellant.

1. The complainant went to pre-school.  After pre-school, the complainant and her mother spoke to the complainant's mother's brother-in-law.  He asked the complainant "what happened", and the complainant said:  "Uncle Kimmy put his hand down my pants."  Later, the complainant, her mother and her aunt discussed "good touching" and "bad touching".  The complainant's aunt asked:  "Has anyone touched you in a bad way or bad touching?" to which the complainant replied:  "Uncle Kimmy put his finger down there", indicating the area of her vagina.  Her aunt said:  "Yes, that's bad touching."

1. The complainant's aunt, in cross-examination, denied that she had said to the complainant:  "Did Uncle Kimmy ever poke you in the rude part?"

1. The complainant was interviewed by the police on 24 November 2004. A videotape of that interview was tendered in evidence pursuant to s 93A of the Evidence Act.  The complainant said:  "My uncle kept poking me there", indicating the area of her vagina.

1. Dr Gavranich examined the complainant on 25 November 2004.  He noted an abrasion "on her labia"; but he said that this mark could have been caused by being poked with a finger or by normal activity.  The complainant's hymen was normal.  He saw nothing to suggest sexual abuse.

1. In the complainant's pre-recorded evidence, the complainant said that her aunt had asked her if the appellant had "poked her in the rude part".  She said:  "Yeah."  She denied that her mother had told her what to say or had helped her to remember what the appellant had done to her.  She rejected the suggestion in cross-examination that the appellant had not touched her as she climbed the ladder.

1. In the complainant's pre-recorded evidence, she was asked in cross-examination about the evening routine.  It seems that this line of questioning related to a period prior to the incident the subject of the charge when the appellant was living with the complainant's family.  The following exchange took place:

"Q.        Did he ever tuck you into bed then when he was staying at your place?
A.         Yeah.
Q.         And give you a little kiss goodnight?
A.         Yep.
Q.         And you would say, 'See you in the morning, Uncle Kimmy.'?
A.         Yep.  Then he went to gaol because he was poking me in the rude parts.
…
Q.         I'm sorry, I missed that.  What did you say then?
A.         Uncle Kimmy had to go to gaol because he poked me in the rude parts.
Q.         Uncle Kimmy had to go to gaol––
A.         Yeah.
Q.         ––for poking you in the rude part?
A.         Yeah.
Q.         Who told you that?
A.         No-one I just had it in my head from last year.
Q.         Just had it in your head?  Did your mummy tell you that?
A.         Na.
Q.         Did your Aunty Kelly?
A.         No."    

1. The appellant did not give or call evidence.

1. After the jury retired to consider their verdict, the learned trial judge had agreed to read out to the jury passages from the evidence which bore on the defence suggestion that the complainant may have been encouraged to complain by the questioning of the adults.

1. The jury were asked to come back so that this redirection could be administered; but they had already reached a verdict.  Her Honour gave the redirection in relation to the circumstances of the complaint, and the jury again retired to consider their verdict.  The jury returned 15 minutes later with a verdict of guilty.

The grounds of appeal

Grounds 2, 4 and 6

1. It is convenient to deal with these grounds of appeal first, and to deal with them together.  The deficiencies in the trial process exposed by these grounds of appeal necessitated the conclusion that the appeal should be allowed.

1. The appellant submitted that the complainant's evidence, set out at paragraph [15], was apt to convey to the jury that the appellant had previously been gaoled for a similar offence on the complainant.  For the respondent, it was contended that this evidence was not capable of being understood by the jury as evidence that the appellant had committed some other act of indecency on the complainant and been gaoled for it.  The respondent submitted that the concluding words of the exchange made it clear that the complainant was speaking, albeit in a somewhat confused way, about the incident the subject of the trial. 

1. The complainant's evidence may well have been confused.  It seems that counsel and the judge may have understood that the complainant was speaking, in a somewhat confused way, about the incident the subject of the trial.  Nevertheless, that understanding was not communicated to the jury.  This evidence was plainly apt to prejudice the jury against the appellant if not clarified.  Indeed, it may well be that the speed with which the jury reached its verdict of guilty reflected its acceptance of this evidence at face value.  The jury may well have thought that the appellant had previously been convicted for the same sort of offence on the complainant, and that he had now "done it again".  It is common ground between the parties to the appeal that the appellant had not been gaoled for an offence of this kind on a previous occasion.

1. To the extent that this evidence was apt to be prejudicial to the appellant, steps could and should have been taken by the appellant's counsel and the trial judge to ensure that this evidence did not prejudice the right of the appellant to a fair trial.

1. The failure of the appellant's counsel in failing to appreciate the need to ensure that there was no possibility that the jury might act upon this evidence, and to take steps to ensure that this evidence was not before the jury is not capable of a reasonable explanation which is consistent with a fair trial according to law.  There was no possible reason why it could be thought that this evidence was not apt to enure to the prejudice of the appellant.  The issue here is not whether the appellant's legal representatives were incompetent.  The issue is whether there was a miscarriage of justice.[1]  That question admits of only one answer:  the appellant could not receive a fair trial with this evidence before the jury in its unclarified state.

   [1]TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 134 [31], 148 [75], 156 [97], 157 [101], 157 [103]; Nudd v The Queen [2006] HCA 9 at [6] - [9], [24] - [27], [157].

1. Similarly, the learned trial judge's failure to ensure that, at least, the confusion in the complainant's evidence was clarified for the jury means that the appellant did not receive a fair trial.  That the judge and counsel may have understood that the complainant's evidence should be understood as referring to the incident the subject of the present trial only serves to emphasise the importance of their failure to ensure that the jury had the same appreciation of that evidence. 

1. These deficiencies in the trial process make inevitable the conclusion that the appellant was denied a fair trial.  This conclusion means that it is unnecessary to consider the appellant's grounds 3 and 5.

The proviso

1. Section 668E(1A) of the Criminal Code provides that this Court may dismiss an appeal, notwithstanding that a point raised by the appeal might be decided in favour of the appellant, if the Court considers that no substantial miscarriage of justice has occurred.

1. In the recent decision of the High Court in Weiss v The Queen,[2] it was explained that where there has been a failure in the trial process, this Court may only apply

   
   

   s 668E(1A) if this Court is itself persuaded that the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. The High Court emphasised the permissive language in which the power in s 668E(1A) is conferred on this Court,[3] and reserved for future consideration the question "whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of" s 668E(1A).[4]

   [2][2005] HCA 81; (2005) 80 ALJR 444 at 453 - 455 [35] - [46].

   [3][2005] HCA 81; (2005) 80 ALJR 444 at 455 [44].

   [4][2005] HCA 81; (2005) 80 ALJR 444 at 455 [46].

1. In the present case, the respondent has not sought to persuade this Court that it should conclude that the complainant's evidence (apart from that which should have been excluded from the consideration of the jury) proved the appellant's guilt beyond reasonable doubt.  In my respectful opinion, the respondent was right to adopt that position.  This Court should not readily accept an invitation to apply

   
   

   s 668E(1A) where the failure of the trial process has been so serious as to make it arguable that the parties have been denied the verdict of the jury as opposed to its mere simulacrum.

Conclusion and orders

1. The appeal should be allowed.  The conviction should be set aside, and there should be a retrial.

1. CHESTERMAN J:  I agree with Keane JA.