R v SCK

Case [2016] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCK [2016] QCA 34

PARTIES:

R
v
SCK
(applicant/appellant)

FILE NO/S:

CA No 60 of 2015
DC No 1529 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 February 2015; Date of Sentence: 10 March 2015

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2015

JUDGES:

Holmes CJ and Fraser JA and McMeekin J
Separate reasons for judgment of each member of the Court, Fraser JA and McMeekin J concurring as to the orders made, Holmes CJ dissenting in part

ORDERS:

1.   The appeal against convictions be dismissed.

2.   The application for leave to appeal against sentence be granted and the sentence appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted at trial of 11 sexual offences against a child, including one count of maintaining an unlawful sexual relationship with a child and seven counts of rape – where the appellant was found not guilty of six counts of indecent dealing – where the appellant argued that these verdicts were inconsistent because all of the alleged offences were corroborated by the complainant’s brother – where the complainant’s evidence was corroborated by the evidence of other witnesses including, but not limited to, his brother – where the complainant’s evidence was consistent with some of the testimony of the appellant – where the jury found the appellant not guilty of those counts where the only support was from the evidence of the complainant’s brother – whether the jury’s verdicts were reconcilable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where evidence of “uncharged acts” was adduced at trial – where in summing up the trial judge referred to this evidence and informed the jury it could only be used if accepted beyond a reasonable doubt – where the trial judge did not warn the jury about engaging in impermissible propensity reasoning – where the uncharged acts were not evidence merely of a propensity by the appellant to commit sexual offences – where the appellant alleged that the trial judge’s failure to properly direct and warn the jury in relation to the uncharged acts resulted in an unfair trial – whether the absence of a such a direction resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where evidence of “non-sexual discreditable conduct” was led at the trial – where the trial judge did not direct the jury regarding this conduct – where the appellant alleged that the failure of the trial judge to direct the jury as to the use of discreditable conduct resulted in an unfair trial – where this evidence was admissible on the broader basis that…

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R v SCK [2016] QCA 34
Case
[2016] QCA 34
Decision Date

CaseChat Overview and Summary

The case of R v SCK involved an appeal against convictions and sentence by the appellant, who was convicted of multiple sexual offences against a child. The appellant argued that the verdicts were inconsistent, that there were misdirections and non-directions by the trial judge, and that the sentence imposed was manifestly excessive. The Court of Appeal was tasked with determining whether the appeal against convictions and sentence should be upheld.

The legal issues before the court included whether the verdicts were inconsistent, whether the trial judge's directions and warnings to the jury were adequate, whether certain evidence was improperly admitted, and whether the sentence imposed was manifestly excessive. The court examined the evidence presented at trial, the trial judge's directions to the jury, and the sentencing considerations taken into account by the sentencing judge.

The Court of Appeal found that the differing verdicts were reconcilable and that the trial judge's directions to the jury were sufficient. The court also concluded that the evidence of uncharged acts and discreditable conduct was properly admitted as it was relevant to the charges. Regarding the sentence, the court held that while the sentencing judge erred in taking into account certain victim impact statements, this did not result in a manifestly excessive sentence. The court ultimately dismissed the appeal against convictions and granted the application for leave to appeal against sentence but dismissed the sentence appeal.

The final orders of the court were that the appeal against convictions be dismissed and the application for leave to appeal against sentence be granted, but the sentence appeal be dismissed. This decision highlights the rigorous scrutiny applied to both the conviction and sentencing phases in serious criminal cases involving sexual offences against children.

Orders

Orders of the court

1. The appeal against convictions be dismissed.

2. The application for leave to appeal against sentence be granted and the sentence appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant gave evidence in his defence. He gave evidence that he first met the complainant and X in 1994 and he kept in contact with the family. He agreed with the evidence that he had brought both the boys from Dalby to stay in the shed with him on his half-brother’s property. He said that they all slept in the same bed. The appellant denied all of the allegations of sexual abuse alleged against him and he maintained those denials in cross-examination. During cross-examination the appellant agreed that when the complainant visited him from Dalby the complainant was still in primary school.Appeal Ground E: The verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence. The evidence of the complainant of the sexual offending of which the appellant was convicted appears to be persuasive. His evidence suggested that he regarded the appellant as a role model, rather like a father or uncle; that he was persuaded by the appellant to think that the appellant’s sexual offending was normal behaviour, and that it was only towards the end of the period charged in count 1 that, as the complainant matured, he began to appreciate that the appellant had abused his position of authority over the complainant. The jury could reasonably accept the complainant’s explanation of his initial reluctance to tell the police of what had occurred; in summary, he was in turmoil and receiving counselling, and did not feel able to complain to police. There was substantial support for the complainant’s evidence of the offences in the evidence given by X. The consistent evidence of those people to whom the complainant made preliminary complaints supported the credibility of the complainant’s evidence. The jury could also find support for the complainant’s account in the appellant’s evidence that on occasions they slept in the same bed when the complainant was a child. Upon the whole of the record, it plainly was reasonably open for the jury to conclude that the appellant was guilty of each of the offences of which he was convicted notwithstanding the appellant’s sworn denials. The appellant confirmed in oral submissions in the appeal that Appeal Ground E was confined to the contention advanced in the appellant’s outline of submissions that the guilty verdicts on counts 10-12 are inconsistent with the not guilty verdicts on counts 4-7 and 13-14. The appellant’s argument (as it was put in the outline of submissions, but not pressed in oral submissions) was that the verdicts were inconsistent because all of the alleged offences were corroborated by X. As is apparent from the summary in [10] of these reasons, however, the differing verdicts are readily reconcilable on the footing that the jury found the appellant guilty of each count which was supported by the complainant’s evidence, whether or not it was also supported by X’s evidence, and the jury found the appellant not guilty of all counts which were supported only by X’s evidence. It does not follow that the jury did not find X’s evidence to be truthful and reliable. Rather, the jury simply might not have been prepared to convict the appellant of an offence against the complainant of which the complainant did not give evidence. It would be unsurprising if the jury adopted that approach in light of the emphasis in the summing up upon the evidence of the complainant. The trial judge directed the jury that, in order to convict the appellant of an offence the jury must be satisfied beyond reasonable doubt of every element that goes to make up the alleged offence, the burden of proof was upon the prosecution, and the jury were obliged to consider each charge separately, evaluating the evidence relating to that particular charge to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved its essential element. The trial judge directed the jury that, if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account when assessing the truthfulness or reliability of the prosecution’s evidence generally. The trial judge referred also to the delay between the end of the alleged offending period (around March 2002) and his complaint to police (which was completed on 14 February 2012) and directed the jury that they might think that the complainant’s evidence could not be adequately tested or met because of such delay, that the appellant had been denied a chance to assemble evidence soon after the alleged offences had occurred, and that the fairness of the trial might have been impaired by that delay. In that context, the trial judge cautioned the jury against convicting upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to the trial judge’s warning about the delay, the jury was satisfied beyond reasonable doubt as to its truth and accuracy.

Decision

Reasons for decision

I am not persuaded that the absence of any direction of the kind to which the appellant referred under appeal Ground D might have resulted in a miscarriage of justice.Appeal against convictions: Conclusion The appeal against convictions should be dismissed.Application for leave to appeal against sentence The ground of the proposed appeal against sentence is that the sentence was manifestly excessive in all the circumstances. The appellant argued that the appropriate sentence was nine years imprisonment. The respondent argued that the sentence of ten years imprisonment with the automatic serious violent offence declaration, under which the appellant would not be eligible for parole until after he had served eight years of that sentence, was not manifestly excessive. The appellant also argued that the sentencing judge erred by making an error in the determination of the period of the maintaining offence charged in count 1 and by taking into account a victim impact statement by X which was an irrelevant or immaterial consideration in the sentence. With the leave of the Court, the parties made additional submissions in writing upon those topics.Irrelevant or immaterial considerations In my respectful opinion the sentencing judge erred by taking into account statements by X in his victim impact statement about the effect upon him of sexual offending which he alleged the appellant committed against him. Contrary to a submission made by the respondent, the circumstance that the sentencing judge had earlier referred to the aggravating features of the offending against the complainant is incapable of justifying a conclusion that the sentencing judge did not take into account X’s statements about the effect upon him of the alleged sexual offending against him. That the sentencing judge took those statements into account is made clear in the sentencing remarks. The sentencing judge summarised the appellant’s offending against the complainant, described the aggravating features of that conduct and the absence of any mitigating circumstances, and referred to “the damage you have done to … these two boys, particularly … the complainant” and to “the victim impact statements…”. After summarising the effect of the complainant’s victim impact statement, the sentencing judge went on to refer to statements in X’s victim impact statement, that “the aftermath of being sexually assaulted by [the appellant] has had a very negative impact on himself and the family and have cast a huge, dark, demon constantly bringing the family down. It has affected his life in many ways, having nightmares, to social awkwardness and questioning himself or his integrity as a man. He found the whole process of having to talk about what happened to him horrific and embarrassing”. As the respondent submitted, s 15 of the Victims of Crime Assistance Act 2009 (Qld) provides for a victim impact statement by a “victim”, the definition of which in s 5 includes a person who is “a family member or dependant of a person who has died or suffered harm because a crime is committed against that person.” “Harm” is defined as meaning “physical, mental or emotional harm”. Those provisions authorised the tender of a statement by X which described harm he had suffered as a result of the offences the appellant committed against the complainant. That is not in issue. What is in issue is only the part of X’s victim impact statement which describes the effect upon X of offending which he said the appellant committed against him. That could be taken into account if the appellant was being sentenced for offences against X. It could not be taken into account in sentencing the appellant for offences against the complainant. The sentencing judge did take this into account and there is no reason to conclude that it did not have a material influence upon the sentencing judge’s formulation of the sentence.Determination of period of maintaining

Ratio Decidendi

Legal Principle Established

The appellant also argued that the sentencing judge erred by making an error in the determination of the period of the maintaining offence charged in count 1 and by taking into account a victim impact statement by X which was an irrelevant or immaterial consideration in the sentence. With the leave of the Court, the parties made additional submissions in writing upon those topics.Irrelevant or immaterial considerations In my respectful opinion the sentencing judge erred by taking into account statements by X in his victim impact statement about the effect upon him of sexual offending which he alleged the appellant committed against him. Contrary to a submission made by the respondent, the circumstance that the sentencing judge had earlier referred to the aggravating features of the offending against the complainant is incapable of justifying a conclusion that the sentencing judge did not take into account X’s statements about the effect upon him of the alleged sexual offending against him. That the sentencing judge took those statements into account is made clear in the sentencing remarks. The sentencing judge summarised the appellant’s offending against the complainant, described the aggravating features of that conduct and the absence of any mitigating circumstances, and referred to “the damage you have done to … these two boys, particularly … the complainant” and to “the victim impact statements…”. After summarising the effect of the complainant’s victim impact statement, the sentencing judge went on to refer to statements in X’s victim impact statement, that “the aftermath of being sexually assaulted by [the appellant] has had a very negative impact on himself and the family and have cast a huge, dark, demon constantly bringing the family down. It has affected his life in many ways, having nightmares, to social awkwardness and questioning himself or his integrity as a man. He found the whole process of having to talk about what happened to him horrific and embarrassing”. As the respondent submitted, s 15 of the Victims of Crime Assistance Act 2009 (Qld) provides for a victim impact statement by a “victim”, the definition of which in s 5 includes a person who is “a family member or dependant of a person who has died or suffered harm because a crime is committed against that person.” “Harm” is defined as meaning “physical, mental or emotional harm”. Those provisions authorised the tender of a statement by X which described harm he had suffered as a result of the offences the appellant committed against the complainant. That is not in issue. What is in issue is only the part of X’s victim impact statement which describes the effect upon X of offending which he said the appellant committed against him. That could be taken into account if the appellant was being sentenced for offences against X. It could not be taken into account in sentencing the appellant for offences against the complainant. The sentencing judge did take this into account and there is no reason to conclude that it did not have a material influence upon the sentencing judge’s formulation of the sentence.Determination of period of maintaining