R v Sco and SCP

Case [2016] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCO & SCP [2016] QCA 248

PARTIES:

In CA No 47 of 2016

R
v
SCO
(first appellant)

In CA No 53 of 2016

R
v
SCP
(second appellant)

FILE NO/S:

CA No 47 of 2016
CA No 53 of 2016
DC No 2 of 2016
DC No 3 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Emerald – Date of Convictions: 12 February 2016

DELIVERED ON:

5 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal by the first appellant is dismissed.

2.   The appeal by the second appellant is allowed.

3.   The verdicts of guilty against the second appellant on counts 14 and 15 are set aside.

4.   A retrial of the second appellant on counts 14 and 15 is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the first appellant was tried on an indictment charging 20 counts of indecent treatment of a child under 16 under his care – where the counts concerned his alleged offending against five complainants, who all gave evidence against him at trial – where, on appeal, the first appellant submitted, inter alia, that there was a miscarriage of justice because there should have been separate trials for each complainant – where no application was made at trial for there to be separate trials – where the way the trial was conducted strongly suggested that there was a perceived forensic advantage for the first appellant in conducting the trial as a joint trial – whether it would be appropriate, in the circumstances, for the Court to sustain a complaint that there should have been separate trials

CRIMINAL LAW – APPEAL AND NEW TRIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the first appellant submitted, inter alia, that certain evidence of the appellant’s uncharged sexual acts and other discreditable conduct was inadmissible and that its admission had caused a miscarriage of justice – where the evidence was relevant to explaining or making intelligible the context or environment in which the offences occurred – where the trial judge gave careful directions about the limited way in which the jury could use the evidence – whether the evidence was properly admitted

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON DIRECTION – JOINT TRIAL OF SEVERAL PERSONS – where the second appellant submitted, inter alia, that the trial judge misdirected the jury as to the use that could be made of the evidence led against her co-accused, the first appellant – where the admissible evidence in the trial overwhelmingly dealt with the first appellant –…

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AGLC
R v Sco and SCP [2016] QCA 248
Case
[2016] QCA 248
Decision Date

CaseChat Overview and Summary

The case of R v Sco and SCP involved two appellants, Sco and SCP, who were charged with various counts of indecent treatment of children under 16. The first appellant, Sco, was tried on an indictment charging 20 counts of indecent treatment against five complainants, all of whom gave evidence against him. SCP was charged with counts related to the same incidents, but her appeal focused on the trial process and the evidence presented. The appellants brought several grounds of appeal, including claims of misdirection and non-direction by the trial judge, improper admission or rejection of evidence, and the need for separate trials for each complainant.

The court was tasked with determining whether there was a miscarriage of justice due to the joint trial, whether certain evidence was improperly admitted, and whether the second appellant was denied a fair trial due to the trial judge's summing up. The court considered the relevance of the evidence presented, the adequacy of the trial judge's directions to the jury, and whether the trial process was fair and just for both appellants.

The court found that the trial judge's directions to the jury were adequate, and there was no miscarriage of justice in the joint trial. However, the court did find that the second appellant was denied a fair trial due to the trial judge's misstatements and omissions in the summing up. The court concluded that the second appellant's appeal was valid, and the verdicts against her on counts 14 and 15 were unreasonable. Consequently, the court ordered a retrial for the second appellant on those counts.

The final orders of the court were as follows: the appeal by the first appellant was dismissed, the appeal by the second appellant was allowed, the verdicts of guilty against the second appellant on counts 14 and 15 were set aside, and a retrial of the second appellant on counts 14 and 15 was ordered.

Orders

Orders of the court

1. The appeal by the first appellant is dismissed.

2. The appeal by the second appellant is allowed.

3. The verdicts of guilty against the second appellant on counts 14 and 15 are set aside.

4. A retrial of the second appellant on counts 14 and 15 is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the relevant time, the appellants had two properties: a farm and a holiday house near a dam.The evidence of the first complainant The first complainant first visited the farm when she was about 12 years old. She continued to visit and stay overnight until she was 14. At the farm, she (and the other girls she invited to the farm) rode motorbikes, shot guns, helped with the cattle and the crops and drove an old “bush-bashing car”. The first complainant said some “bad stuff” started happening. The first appellant started showing her pornographic material within about six to eight weeks of her first visit. It included Penthouse and Playboy books and special books in plastic sleeves that were triple X rated. While he was showing her that material he said things like “this is what the big people do” and “this is what you need to learn”. The first piece of pornographic material the first appellant showed her was a book called The Joy of Sex. He called her into a room she called “the alcove” and asked her to sit down. He showed her through the book and told her the sexual positions he had tried. Nothing else happened “the first time with the book but another time with the book”. During that “other time”, she was reading on her bed. The first appellant came out of the shower, wearing only a towel. He jumped on the bed next to her; tried to tongue kiss her; put his hand up her shirt; touched her breasts (count 4); and grabbed her hand and put it on his penis (count 3). He had the book with him. The first appellant often walked around the farmhouse wearing nothing. The first complainant recalled an occasion on which he came up behind her in the hallway, naked and with an erection. He said “You made me do this” (count 2). The first appellant showed her sex toys. He showed her a penis ring and said he used it to stay erect longer. He showed her a vibrator which he said made the second appellant feel good. The second appellant was in the house on two or three occasions while the first appellant walked around naked. The first complainant travelled with the first appellant to buy alcohol from a bottle shop which he gave her to drink (when the other girls were also at the farm). The first appellant gave her valium two or three times. There were other girls staying at the farm when the appellant gave her valium. She could not recall the second appellant being present when the first appellant gave her valium. On a trip from one town to another to pick up a mechanical device, while the first complainant was sitting between the appellants on the bench seat of their white Ford Courier utility holding on to the gear stick to stop it popping out, the first appellant put his hand on her leg, moved it up to her crotch and cupped it (count 5). The first complainant invited her friends (the second, third, fourth and fifth complainants and another girl) to the farm. The first complainant said the first appellant “lost a little bit of interest in me when the other girls started coming up”. He talked to her a little bit about sex, but mostly focused on the second complainant. She heard him talk to the second complainant about sex, including how good it felt and that she should be looking forward to it. The first appellant walked around naked when the other girls were at the farm.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was submitted that given the line of sight that might be imputed to the second appellant and the reasonable likelihood that even if the sexual act was occurring as described by the complainants, the second appellant may have believed no one was able or in a position to see it, the issue of wilfulness was a live one.Consideration As set out earlier in these reasons, his Honour specifically directed the jury with regard to this charge that “wilfully” meant “deliberately”. There was and could be no complaint about that direction. The judge told the jury that they must be satisfied that each element of the charge, including that the exposure was wilful, was proved beyond reasonable doubt. His Honour had identified, with the agreement of both defence counsel in argument prior to the summing up, that the “real question” was whether the event occurred. In those circumstances the direction given by his Honour which is set out below was adequate to deal with the real dispute between the parties but also to remind them that all of the elements of the offence had to be proved beyond reasonable doubt:“Now members of the jury, before you could convict [the first or second appellant] of count 14, 15 or 16 you must be satisfied beyond reasonable doubt that the event occurred as described. In particular what you must be satisfied of, beyond reasonable doubt, it seems to me, is that — to borrow from the wording — [the first and second appellants] unlawfully exposed each child for each charge, being under 16 years, to an indecent act, the indecent act being an act of oral sex. If satisfied beyond reasonable doubt of that and of all of the other ingredients, you may convict. If you have a reasonable doubt about whether it occurred in each case, you must acquit.” (emphasis added) The ground of appeal is not made out. The first appellant has not been successful in any of the grounds of appeal which he argued and his appeal against conviction must therefore be dismissed.Unreasonable Verdicts The second appellant raised two further grounds of appeal. The first was that the verdicts of the jury on counts 14 and 15 were unreasonable and the second, related, ground was that there was a misdirection as to the use that could be made of the evidence led against her co-accused, the first appellant.Second Appellant’s Submissions The second appellant referred to the fact that four versions of the conduct which was the subject of counts 14, 15 and 16 were given. The three complainants gave differing accounts of the incident, while the second appellant gave evidence that no such event had ever occurred. It was submitted that the verdicts delivered by the jury indicate that they did not believe the appellant’s denial but, given the acquittal on count 16, they also did not believe the fourth complainant’s account. Accordingly, it was submitted, the jury must have believed the event occurred, but only as retold by the first and second complainants. The second appellant then pointed to features of the evidence given by the first and second complainants that would give objective cause for disquiet. This included, inter alia, the fact that the first complainant asserted that four girls (including the fifth complainant, who was not added to the indictment as a co-complainant for this offence) were sitting on a two-seater couch with the appellants sitting on another couch opposite them. By contrast, the second complainant gave evidence that the girls were lying on the ground with the appellants sitting on a couch behind them.