R v SCH

Case [2015] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCH [2015] QCA 38

PARTIES:

R
v
SCH
(appellant)

FILE NO/S:

CA No 184 of 2014
DC No 44 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Gladstone

DELIVERED ON:

20 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2015

JUDGES:

Holmes and Philippides JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The appellant’s conviction on count 2 be quashed.

3.   A verdict of acquittal on count 2 be entered.
CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was acquitted of one count of rape and convicted of an alternative count of indecently dealing with a child under 12 years under his care – whether the verdict was unreasonable or insupportable having regard to the evidence – where the complainant’s evidence was inconsistent and contradictory – whether the evidence was sufficient to establish the appellant’s guilt beyond reasonable doubt – where the court had the benefit of all the recorded evidence relied on at trial

Criminal Code (Qld), s 210(1)(a), s 210(3), s 210(4), s 668E
Evidence Act 1977 (Qld), s 9A, 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
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

J J Allen QC for the appellant
D L Meredith for the respondent

SOLICITORS:

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

  1. HOLMES JA:  I agree with the reasons of Philippides JA and the orders she proposes.

  2. PHILIPPIDES JA:  Background The appellant was acquitted after a trial in the District Court at Gladstone of one count of rape and convicted of an alternative count of indecently dealing with a child under 12 years under his care (s 210(1)(a), (3) and (4) of the Criminal Code).

  3. The complainant child, M, the biological daughter of the appellant, was born on 5 January 2009.  She was three and a half years old at the time of the alleged offences and initial interview by police and four and a half years at the time of her pre-recorded evidence.

  4. The offences of rape and indecent treatment with circumstances of aggravation were charged in the alternative.  The charge of rape (count 1) was alleged to be constituted by penile penetration of the complainant’s vulva.  The charge of indecent treatment with circumstances of aggravation (count 2) was left for consideration in the event that the jury had a doubt as to whether penile penetration was proved and was alleged to be constituted by some type…

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Details
AGLC
R v SCH [2015] QCA 38
Case
[2015] QCA 38
Decision Date

CaseChat Overview and Summary

The case of R v SCH involved an appellant who was acquitted of one count of rape and convicted of an alternative count of indecently dealing with a child under 12 years under his care. The appellant appealed against his conviction, arguing that the verdict was unreasonable or insupportable having regard to the evidence. The appeal was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the verdict was unreasonable or insupportable having regard to the evidence. The court had to determine whether the evidence was sufficient to establish the appellant’s guilt beyond reasonable doubt, considering the inconsistencies and contradictions in the complainant’s evidence. The court also needed to assess whether the jury had an adequate basis for concluding that the appellant was guilty of the offence.

The court concluded that the jury’s verdict was unreasonable or insupportable having regard to the evidence. The complainant’s evidence was inconsistent and contradictory, and the court was not satisfied that the evidence was sufficient to establish the appellant’s guilt beyond reasonable doubt. The court noted that the complainant’s evidence was difficult to understand, and the inconsistencies and contradictions in her account undermined her credibility. The court also noted that the evidence of the other witnesses did not support the complainant’s account of events.

The court allowed the appeal and quashed the appellant’s conviction on count 2. The court entered a verdict of acquittal on count 2.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant’s conviction on count 2 be quashed.

3. A verdict of acquittal on count 2 be entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following is a summary of the evidence given.The complainant’s evidence When interviewed by police on 13 August 2012, M gave the following account:“I stay at my dad’s and I have a sleepover – he puts my bits into his bits ... I was still awake with the TV off I was getting new nappy then he did it...…I was in my dad’s room and I – naked... And I was just laying down and he did it ... He put my bits and then he did this, he put it into my bits.”(In the context of the whole of the evidence, including that of M, her sister and mother, it is plain that the reference to “his bits” and “M’s bits” was a reference to their respective genitalia. M’s later reference to J’s bits is also to be understood in that way.) M said that when it happened “it was night-time” and that she “was still asleep ... And he then he did it”. When asked to say “what [her] dad did”, she replied, “It’s what boys and girls do... Um, they put their bits into boys’ bits”. M was asked what “bits” she was talking about and replied, “Brown... and big”. When asked “So tell me more about the brown and big thing”, M said, “Um, there was sauce in it”. After further questions, M said:“… I was watching a movie... And I was just saying ‘Press play, Daddy. Press play, Daddy.’... He got naked... he was getting me in trouble, ‘Get into bed, Darling’... He said it again... And again... I was lay down then I wet the bed... he was telling me to lay down and go to sleep... He just was putting his hands up and he was gonna smack me... I was laying down then he said it again and again and again... He just said, ‘I see you on Monday’... And I not coming – and I not going back there... ‘Cause Mum said so.” When asked about “what was brown and big and had sauce on it”, M said, “Um, it was white” referring to the “sauce”. She also said that her “bits” were red and pointed to her lower body, “[r]ight in there”. She said her father asked whether she liked it or not and that she said she did not. M was asked what she used her “bits” for and said she “stuck it on his”. She was asked what she meant by “his” and answered, “‘Cause there’s milk – ‘cause there’s sauce coming out... Yeah, and I’m not allowed to touch boys’ bits”. When asked to tell more, M said, “Um, he said ‘If you don’t settle down... I’ll put all the lights out’”. M said that the appellant said, “You’re not gonna watch more movies”. She said she “was at the doctor’s ‘cause Daddy hurt these... My dad’s putting his bit”. When asked “tell me more about Daddy’s bits”, M said, “The TV was off. Then all the lights off... Then I was really, really, really scared... ‘Cause I – I still have nightmare... I saw alien was there and… then an alien kissed me.” M was asked again to tell everything she could “remember about Daddy’s bits” and replied, “Um, he said ‘Well, lay down, Darling.’ ... I was laying down then my eyes was closed... Then he said ‘Darling, it’s day time’… I go to my mum’s.” When asked again to tell more “about your daddy’s bits”, M said:“Um, I was just um in the bathroom... and I was floating the boats then I was walking out to Dad and there was someone knocking on the door... Then he said ‘Be quiet, Darling.’... Then he said – he gave me my bottle... And I want – I want to pick up [J]... Then all the lights were off [again]... Then he just said, ‘Darling’... ‘If you don’t settle down I’ll smack your bum.’”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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