R v SCV

Case [2017] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCV [2017] QCA 218

PARTIES:

R
v
SCV
(appellant)

FILE NO/S:

CA No 228 of 2016
DC No 218 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 3 August 2016 (Butler SC DCJ)

DELIVERED ON:

29 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2017

JUDGES:

Sofronoff P and Gotterson and Morrison JJA

ORDERS:

1.   The appeal is dismissed.

2.   Order that a warrant issue for the arrest of the appellant, to lie in the registry for seven days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – IN GENERAL – where the appellant was convicted of indecent treatment of a child under 16, under 12, who was a lineal descendant – where the appellant appeals against his conviction on the grounds that a miscarriage of justice was caused by trial counsel’s failure to cross-examine the complainant about previous, unsubstantiated allegations of sexual abuse and that he was denied an informed choice whether to give evidence – where the appellant signed written instructions to the effect that his legal representatives would not raise the prior allegations and confirming that he had received advice about giving evidence – where the relevant test regarding evidence not led is whether the decision not to raise the previous allegations of sexual abuse led to a forensic advantage – where, if a forensic advantage was gained, there is no miscarriage of justice – whether there was a forensic advantage in not raising the previous allegations of sexual abuse – where affidavits from the three lawyers who acted for the appellant at his trial were tendered by the respondent to show that the risks and benefits of the appellant giving evidence were discussed on more than one occasion and the appellant was advised not to give evidence – where the test is whether the advice misled the appellant and whether there was a sound forensic reason for the advice – whether the decision not to give evidence was a consequence of being misled – whether there was a sound forensic reason for the advice – whether a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant appeals the conviction on the ground that the learned trial judge’s response to a jury question led to a miscarriage of justice – where the question asked whether the jury must be satisfied that the offence occurred between the dates shown on the indictment – where the learned trial judge answered yes and reminded the jury of particular parts of the complainant’s evidence – where the appellant accepts that answer is correct but cavils with the advice that followed – where the appellant submits that more passages from the complainant’s evidence should have been read – whether the learned trial judge’s failure to remind the jury of further evidence resulted…

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Details
AGLC
R v SCV [2017] QCA 218
Case
[2017] QCA 218
Decision Date

CaseChat Overview and Summary

The appellant was convicted of indecent treatment of a child under 16, under 12, who was a lineal descendant. The case involved multiple grounds for appeal, including misconduct of counsel, misdirection of the jury, and the reasonableness of the jury's verdict. The appellant argued that trial counsel’s failure to cross-examine the complainant about previous, unsubstantiated allegations of sexual abuse led to a miscarriage of justice. Additionally, the appellant contended that he was denied an informed choice whether to give evidence, as he had signed instructions not to raise the prior allegations and confirming that he had received advice about giving evidence. Furthermore, the appellant claimed that the trial judge's response to a jury question led to a miscarriage of justice and that the verdict was unreasonable and not supported by the evidence.

The court needed to decide whether the decision not to raise the previous allegations of sexual abuse led to a forensic advantage, thereby negating a miscarriage of justice. It was also necessary to determine if the advice given to the appellant about giving evidence was misleading or if there was a sound forensic reason for that advice. Additionally, the court had to assess whether the trial judge's response to the jury's question caused a miscarriage of justice and whether the jury's verdict was reasonable in light of the evidence presented.

The court found that there was no miscarriage of justice as the decision not to raise the previous allegations of sexual abuse did not lead to a forensic advantage. The appellant had signed instructions confirming that he understood the risks and benefits of not giving evidence, and the advice provided was sound. The court also held that the trial judge’s response to the jury’s question did not lead to a miscarriage of justice and that the jury's verdict was reasonable and supported by the evidence. Consequently, the appeal was dismissed, and a warrant for the appellant's arrest was ordered.

Orders

Orders of the court

1. The appeal is dismissed.

2. Order that a warrant issue for the arrest of the appellant, to lie in the registry for seven days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following admission were made at the trial:[1][1]AB 525. The admissions have been modified to preserve privacy.1.The complainant and her twin brother were born in 2005.2.They are the children of the appellant and S.3.Within a week of the twins being born, they were taken into the care of Child Safety Services.4.The twins were not taken into care because of any concern about sexual abuse by the appellant.5.The twins have never lived with their parents, but have lived in a number of foster homes. The twins lived with the B’s from 2008 until January 2013, and the twins have lived with N from January 2013 to the present.6.The appellant and S had supervised access to the twins at various times since their birth.7.The appellant and S had unsupervised access to the twins from the end of May 2012 to the start of October 2012.8.The unsupervised access between the appellant and the twins did not cease because of concerns about sexual abuse by the appellant.9.The complainant had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at the time of her first interview with police on 17 June 2013, but was not being medicated for that condition.10.At the time of her second interview with police on 27 November 2014, the complainant was receiving medication to treat her ADHD.11.On 29 September 2011 the twins were living with the B’s. Mr B was at home with the twins, who were playing in a cubby house. When Mr B checked on the twins he observed the brother’s head in the complainant’s lap. The brother told Mr B that “they” saw a child in the school toilets sucking the penis of another child. The complainant told the B’s that her brother had told her to suck his penis.The complainant’s evidence The complainant gave evidence by means of a statement pursuant to s 93A of the Evidence Act 1977 (Qld), and pre-recorded evidence under s 21AK of that Act. The complainant was eight when first interviewed by police in June 2013. She said that she and her brother were in foster care with N until they reached 18 years of age. The appellant was helping the complainant’s sister (who lived with the appellant and S) and fell and broke his leg. As a result the complainant and her brother had to have visits at the house occupied by the appellant and S.[2][2]AB 534 lines 19-32. At her first interview the complainant said:(a)two girls at her school told her to “go into the toilets with them to do S-E-X”;[3] she walked off but the two girls “started to do it”;[4] she told the teacher; she explained that “doing S-E-X” meant “how you rub your rude part together to the other person’s”;[5] they were seen under the toilet door;[6][3]AB 539 line 25.[4]AB 540 lines 5-9.[5]AB 540 line 49, AB 541 line 42.[6]AB 541 line 22.(b)she explained “doing S-E-X” in more detail, as “when the other person puts … their hand on … the other person’s … rude part”;[7] she saw each of the girls touching the other’s rude part;[8][7]AB 542 lines 35-41.[8]AB 543 lines 1-28.(c)she identified that the “rude part” is also called “fanny” and “bottom”, and is the part that you go to the toilet with, and the fanny is used to “do number ones”;[9][9]AB 543 line 30-AB 544 line 7.(d)in terms of who lived where, her mother, father and sister lived in “my real house”;[10](e)she explained that the appellant: “touched … my rude parts when … Mum and [her brother] and [her sister] was … Mum and Dad’s room and me and Dad was in the lounge room, Daddy touched my rude part. … and I didn’t tell him to do that, but he done it. And I said, “I don’t” - and I said, “I didn’t tell him.” And I said, “I don’t”- I didn’t wanna.”[11](f)when asked for greater detail, she said that it occurred “when we was living - with Mum and Dad, when we didn’t get tooken to [N’s] or [X] or [Y], all those, the carer or to, yeah, [Z]”; it was when they were living “with Mum and Dad”;[12](g)she said “I tell him - Daddy to stop touching my rude part”;[13] “I was telling Daddy to stop touching my rude part, but he didn’t”; he touched her on her fanny with his hand; at that point she indicated her crotch as the place where his hand touched;[14](h)later she explained how she was touched; she said “he rubbed his hand on my fanny”, “he went like … that”, at the same time as making a rubbing motion on her crotch;[15] then “he started to pinch my fanny”;[16] she indicated a pinching motion on her right knee, to show how he pinched, saying it was “hard”;[17](i)she said it happened when she was sitting on the lounge watching High Five on television;[18] the appellant was sitting on the ground;[19](j)she explained it further: “ … he was in bed. And then I tip-toed out… into the lounge room and … waked up and he - he was - he looked over my side, he looked over the side where I – ‘cause I sleepted [sic] near Daddy and he looked … on this...side, because he was on this...side and I was on ...that side and he looked over this...side and he - and I wasn’t there, so he tip-toed out to the lounge room and done it, done - touchted [sic] my rude part”;[20] (k)he took her clothes off, by pulling them down;[21] when she asked him to stop he said “no”;[22](l)she explained that the appellant, S, herself and her brother and sister were all in the one bed that night;[23] and(m)she was touched on an occasion when she was living with the appellant and S, with no carers; that was the only time that the appellant had touched her on her rude parts.[24][10]AB 547 lines 22-38.[11]AB 553 lines 39-45.[12]AB 554 line 31.[13]AB 555 line 7.[14]AB 556 lines 25-54.[15]AB 559 lines 19-30.[16]AB 559 lines 44-48.[17]AB 560 lines 5-18, AB 568.[18]AB 561 lines 12-30, AB 570-571.[19]AB 562 line 35.[20]AB 564 lines 6-18.[21]AB 576 lines 50-AB 577 line 10.[22]AB 576 line 10.[23]AB 565-566.[24]AB 571.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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