R v RAU

Case [2015] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

R v RAU [2015] QCA 217

PARTIES:

R
v
RAU
(appellant)

FILE NO/S:

CA No 305 of 2014
DC No 30 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Dalby – Unreported, 28 October 2014

DELIVERED ON:

6 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2015

JUDGES:

Gotterson and Philippides JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

That the appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of one count of exposing a child under 12 years to an indecent act and one count of indecent treatment of a child under 12 years – where the complainant child and her mother were the only two witnesses – where there were some alleged inconsistencies in the complainant’s evidence – where the trial judge gave directions as to the need to scrutinise the complainant’s evidence carefully – where the jury were aware of the substantial matters relevant to the complainant’s credit and reliability – whether the verdicts were unreasonable or insupportable having regard to the evidence

Criminal Code (Qld), s 210(1)(a), s 210(1)(d), s 210(3), s 668E(1)
Evidence Act 1977 (Qld), s 21AK, s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
R v SCH [2015] QCA 38, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

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

  1. GOTTERSON JA:  I agree with the order proposed by Philippides JA and with the reasons given by her Honour.

  2. PHILIPPIDES JA:  Background The appellant was convicted after a trial on 27 and 28 October 2014 of one count of exposing a child under 12 years to an indecent act (s 210(1)(d) and s 210(3) of the Criminal Code) and one count of indecent treatment of a child under 12 years (s 210(1)(a) and s 210(3) of the Criminal Code).

  3. Count 1 was particularised as “the [appellant] having placed money on, as [the complainant] put it, his ‘rude part’ and asked her to remove the money from it”.  This was alleged to have occurred in the complainant’s bedroom when she was in her top bunk.  Count 2 was particularised as “the [appellant] rubb[ing] his rude parts against [the complainant’s] rude parts, that is … [the appellant] had removed his pants … [the complainant] still had [her] underpants on … [the appellant] lay on top of [the complainant], and he was…

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Details
AGLC
R v RAU [2015] QCA 217
Case
[2015] QCA 217
Decision Date

CaseChat Overview and Summary

The appellant, R, appealed against his conviction on two counts: one of exposing a child under 12 years to an indecent act and one of indecent treatment of a child under 12 years. The decision of the appeal was considered by the Court of Appeal of the Supreme Court of Queensland. The primary concern of the court was to determine whether the verdicts were unreasonable or insupportable considering the evidence presented. This involved an analysis of the complainant's evidence and the directions given by the trial judge to the jury about the need to carefully scrutinise the complainant's testimony.

The court examined the nature of the complainant's evidence, which was given in two police interviews and a subsequent court appearance. The complainant's accounts varied slightly between the interviews, which led to some perceived inconsistencies. Despite these inconsistencies, the trial judge had directed the jury to consider the substantial matters relevant to the complainant's credit and reliability. The court held that the jury, having been properly directed, was in the best position to assess the credibility of the complainant. The jury had been made aware of the inconsistencies and had chosen to believe the complainant's account, a decision that the court found to be reasonable given the evidence.

In dismissing the appeal, the Court of Appeal found that the jury's verdicts were neither unreasonable nor insupportable. The trial judge had correctly instructed the jury on the need to carefully evaluate the complainant's evidence, and the jury had done so, ultimately finding the appellant guilty. The court underscored that it was not its role to substitute its judgment for that of the jury, especially when the jury had been properly directed and had given due consideration to the evidence. The appeal was therefore dismissed, and the convictions were upheld.

Orders

Orders of the court

That the appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant’s evidence was in the form of two recorded police interviews with the complainant on 9 September 2012 and 24 September 2012. Those recordings (made when the complainant was six) were admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld). A recording of the complainant’s evidence taken at the District Court at Toowoomba on 21 July 2014 (when she was eight) was admitted pursuant to s 21AK of the Evidence Act.The evidence of the complainantFirst interview In the first s 93A interview, the complainant initially appeared reluctant to speak about anything of a sexual nature that the appellant had done to her. She did not make any complaint of a sexual nature until the police officer said that he had heard from the complainant’s mother that the appellant had done something that upset her on her top bunk.[7] Even then, the first complaint made was that “when [the appellant] went [indistinct] off my top bed, my top bunk … he accidentally put his knee in my rude part and my rude part was all red”. The complainant stated that her “rude part” was the part of her body she used for “weeing” and elaborated on the occasion when the appellant put his knee in her rude part.[7]R says “Nothing did” when asked what happened in her bunk bed that upset her. The complainant only made a complaint about the allegation that became count 1 after the police officer said to her that her mother had told him that “something happened when [the complainant was] on the top bunk with [the appellant] and that [the appellant] put money somewhere … that [the appellant] put money on his rude part and told [the complainant] to take it off”. The complainant then gave an account of the event that was charged as count 1, although it is to be noted that, even then the police officer had to prompt the complainant by indicating what he had been told the complainant had told her mother:“He had my five dollarsMm .. Tell me about [the appellant] having your five dollars and start at the beginningThat I asked if I could have it and he said you have to pull it off and I didn’tHe said what sorry, [R]He told .. he had my [indistinct] five dollars and I wanted it and he .. I said nicely can I please have it and he said you have to pull it off when I didn’t want toMm and where did he put itDown.. he put it on tighterYou put it on tighterNo he didHe did.. and you said to mummy that he put it.. where did he put it tighter.. you told mummy that it was on his rude part.. is that right.. and where is his rude part.. and what does.. what does.. what do boys do with their rude part.. do you know another name for a boys rude part.. and where were you when this happenedOn my top bunk” The complainant said that this event had occurred when her mother was in bed. She was asked if she had told anyone about it and she said that she had only told her mother.Second interview Just over two weeks after the first interview, the complainant was interviewed again by the same police officer. The police officer commenced the questioning in the interview by saying that he had heard that something had upset her on Friday night. The complainant said that she had told her mother that “[the appellant] was doing rude stuff”. She then described the event which was charged as count 1, but used the words “my 5 cents” rather than “my five dollars” as she had in the previous interview.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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