R v Sei
[2024] QCA 128
•6 June 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v SEI [2024] QCA 128
PARTIES:
R
v
SEI
(appellant)FILE NO/S:
CA No 256 of 2023
DC No 2554 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 27 November 2023 (Gardiner DCJ)
DELIVERED ON:
Date of Orders: 6 June 2024
Date of Publication of Reasons: 12 July 2024DELIVERED AT:
Brisbane
HEARING DATE:
6 June 2024
JUDGES:
Bond and Flanagan JJA and Bradley J
ORDERS:
Date of Orders: 6 June 2024
1. The appeal is allowed.
2. The convictions are set aside.
3. A new trial is ordered on both counts of the indictment.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of exposing a child to an indecent act and one count of indecently dealing with the same child – where it was admitted that the child attended a hospital two days after the alleged offending and presented with abdominal pain and pain passing urine – where it was admitted that a test of the child’s urine indicated blood was present in it – where it was admitted that a paediatric doctor expressed an opinion that the presence of blood in the child’s urine was more likely caused by “irritation” rather than a urinary tract infection (the impugned evidence) – where, in the Crown's closing, the Crown prosecutor said that the irritation could “be caused by rubbing or touching, which is what [the child] says happened” and “was consistent with touching in the area of the vagina” as the child had described and demonstrated to police – where no directions relating to how the jury should deal with the impugned evidence or the statements by the Crown prosecutor were sought by the appellant and no directions were made – whether the Crown prosecutor invited the jury to engage in speculative reasoning – whether there was a miscarriage of justice
Criminal Code (Qld), s 668E(1), s 668E(1A)
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited
R vMarkuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, citedCOUNSEL:
J B Horne for the appellant
S L Dennis for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Direct of Public Prosecutions (Queensland) for the respondent
THE COURT: On 6 June 2024, at the conclusion of the hearing of this appeal, the Court ordered that:
(a)the appeal is allowed;
(b)the convictions are set aside; and
(c)a new trial is ordered on both counts of the indictment.
The Court made those orders for the following reasons.
Overview
The appellant was convicted by a jury of two counts of indecent treatment of a child under 12, after a trial in the District Court. The first count was of exposing the child to an indecent act, in contravention of s 210(1)(d)(3) of the Criminal Code (Qld) (the Code). The Crown case was that he positioned himself atop the child in her bed with his penis exposed and erect (count 1). The second was indecently dealing with a child, in contravention of s 210(1)(a)(3) of the Code. The Crown case was that he touched the pubic area of the child with his hand both over and underneath her underwear (count 2).
The Crown case was that both counts concern the same child and were alleged to have been committed sequentially on the same day, 27 December 2021. The child was 11 years of age.
The evidence before the jury included a document setting out admissions by the Crown and the appellant pursuant to s 644 of the Code. Among the matters included in the admissions were some concerning the child attending a public hospital within a few days of the alleged offending. Some of the admissions are not in issue. These may be summarised. On the evening of 29 December 2021, the child went to the emergency department with her mother. She presented with abdominal pain and pain passing urine. A urine test indicated some blood was present in her urine. The doctor thought she had a urinary tract infection. The child “refused to take part in a clinical examination of her genitalia.” On 30 December 2021, the child was seen by another doctor at the hospital. She “again refused examination of her private parts … and refused to have a blood test.”
Paragraph 6 of the admissions document (the impugned evidence) is in issue. It reads:
“Further testing of [the child’s] urine by the hospital indicated the presence of white blood cells but no bacterial growth. In the opinion of the paediatric doctor these results were unlikely to be the result of an infection and were more likely to have been caused by irritation.”
The admissions document did not state whether the paediatric doctor's opinion was proved as a fact by the admission in paragraph 6 or whether all that was proved was that the doctor expressed the opinion.
The appellant contends that a miscarriage of justice occurred. First, he says there was a miscarriage by reason of the admission of the impugned evidence and the Crown prosecutor’s invitation to the jury to engage in speculative reasoning about it. Second, he says there was a miscarriage because the learned trial judge failed to direct the jury about the use that could be made of the impugned evidence.
The course of the trial
The trial took place over four days.
Pre-trial exchanges with counsel
On the morning of Wednesday 22 November 2023, before the trial commenced, the Crown prosecutor informed the trial judge that the parties were “trying to resolve admissions in relation to the evidence [a doctor] had indicated she might give.” The Crown prosecutor said the doctor was not available to give evidence at the trial. “If those admissions can be resolved there won’t be a need to call a doctor”.
The trial judge told the Crown prosecutor he was “wondering what possible relevance the doctor’s evidence has to the nature of the complaints.” The Crown prosecutor said:
“The doctor’s evidence went to indicating that an opinion that it was likely from irritation what she presented with. And that an irritation can be from touching, your Honour. So it’s relevant to that, but there’s also the statements – appear to be made by the child about what happened.
… It’s not – what appears to have been said is not inconsistent with what the child says generally happened.”
The trial judge asked, “But what’s the point of the evidence? Why’s it being led?” The Crown prosecutor replied:
“The point of the evidence is that she went to the hospital complaining of abdominal pain and pain in – and urinating as well. The allegation is that she was touched in that area by the defendant.”
The Crown prosecutor clarified that she was referring to “the vaginal area”, and continued:
“She says that – she describes what he was doing about being – he touched her on the outside of her pants on the vagina. She points down to where it was … and talked about his hand going in circles. … But she also said – on the outside of her clothes. Yes. There’s no allegation of the inside of vagina.”
The trial judge asked again about the relevance of the testing of the child’s urine. The Crown prosecutor said it was relevant because:
“the opinion is that it’s from …secondary to irritation or possibly trauma and sexual abuse.
… It’s not inconsistent, in my submission, in relation to what she says happened.”
His Honour asked what the doctor meant by “irritation”. The Crown prosecutor said, “There’s no explanation as to that.” His Honour cautioned that the foreshadowed evidence was “all very vague” and, as described by the Crown prosecutor, the doctor was “Just completely speculating”.
As the exchange drew to an end, the trial judge said to the Crown prosecutor, “Anyway, you don’t know who you’ll be calling or what evidence you’ll be calling on this issue.”
The trial judge asked defence counsel whether he was content with the Crown prosecutor opening these issues to the jury in the circumstances. Defence counsel said, “it’s less than ideal”. His Honour expressed a concern about a possible mistrial “because something’s been opened when really it hasn’t been resolved, it seems.” The Crown prosecutor responded:
“Your Honour, the – there’s no issue that there was – the child presented to the hospital. She – there was a report made as to the history. And she presents with certain conditions, and there’s opinions provided as to what she presents with. There hasn’t been any issue in relation to that. It’s just exactly how it’s placed into an admissions document – if that can be finalised by checking with the records from the hospital. So in opening it, it is very broad about how she presented on this day and overnight and that she – the – what she presented with – and she provided a version, or a version was provided. So I’m opening very broadly in relation to it.”
Defence counsel told the trial judge, “The most that [the doctor’s] opinion could extend to, rather, was that the tests were consistent with irritation.” When his Honour expressed concern that “it sounds like the prosecutor’s going to lead more than that”, the Crown prosecutor responded:
“No, that – only what’s been agreed – to the level that’s been agreed at this point that it was irritation. … That’s the extent of it because there’s no agreement in relation to anything further. So I’m not opening very finely, I’m opening quite broadly.”
That was the end of the pre-trial consideration of the matter in court.
Trial day 1
The trial commenced at about 11.10 am. The appellant was arraigned, and the jury empanelled. In the absence of the jury, an issue about the exclusion of certain DNA evidence was resolved on the basis that the Crown would not lead that evidence. The Crown prosecutor then informed his Honour that the admissions were not yet agreed, but she would show defence counsel what she proposed to say in the opening address about the doctor’s opinion.
The jury returned at about 12.44 pm, and the Crown prosecutor gave her opening address. In doing so, the Crown prosecutor told the jury:
“You’ll hear that at the hospital, while a version was given as to what happened, [the child] was uncooperative and refused to be examined, and the next day, denied anything had happened – whether being touched, or interfered with. You’ll also, however, hear as to the symptoms and results in relation to blood in her – being found in her urine, and an increased white blood cell count, which was indicative of there being some irritation to the vagina, rather than an infection, in the opinion of the doctor.”
When the jury returned from lunch, a recording was played of a police interview with the child. Then, the first 21 minutes of the child’s prerecorded evidence was played.
Trial day 2
On Thursday 23 November 2021, the balance of the child’s prerecorded evidence was played. After a morning tea break, an edited recording was played of a police interview with another child, the complainant's sister. This was followed by the prerecorded evidence of the sister. In the afternoon, the child’s mother gave evidence.
Trial day 3
On Friday 24 November 2021, the jury heard the evidence of the sister’s boyfriend, who lived with the child’s family, and of two police officers. The recording of a police interview of the appellant was then played.
After lunch, in the absence of the jury, the Crown prosecutor produced the document setting out the admissions. The trial judge questioned the Crown prosecutor about the relevance of the impugned evidence. The Crown prosecutor said:
“[The child’s] complained about being touched by the defendant; that’s what the issue is … in relation to count 2. She was examined by the doctor and this is what’s found. …
Because she complains about being touched. … She said on the inside and outside [of her clothes]. But she described what he did on the outside in rubbing in circles. She didn’t describe what he did when he was inside her pants. These admissions have been agreed, your Honour, and the parties can use them to the extent the parties wish – can make submissions in relation to them.”
His Honour asked what the Crown prosecutor intended to say about the impugned evidence. The Crown prosecutor responded:
“Well, it’s not inconsistent with being – what she describes as being touched by the defendant in the vaginal area. My submission is that the medical evidence doesn’t assist greatly. It’s not that this is conclusive that this is what it means. That it’s just not inconsistent with – or it is consistent with being touched, because that can cause irritation.”
Defence counsel had nothing to add.
When the jury returned, the admissions were tendered. Defence counsel told the jury the admissions were admitted by the appellant. His Honour told the jury they would have a copy of the admissions in the jury room. They were then read to the jury. They included the impugned evidence.
The Crown case was then closed. The appellant was called upon. He did not give evidence.
The Crown prosecutor then gave her final address to the jury. In doing so, the Crown prosecutor told the jury:
“Now the medical evidence is limited by her lack of compliance, and that’s in relation to what is on the admissions document that was read out to you. But what information the doctor did have was that the – how [the child] presented to the hospital was consistent with irritation, which commonsense – irritation can be caused by rubbing or touching, which is what [the child] says happened. …
And in any event, what she says that [the appellant] did to her, … rubbing her vagina over her pants after putting his hand in her pants. … So if there’s nothing that would suggest penetration or intrusion into her genitalia, it’s a very low-level touching and nothing that an invasive investigation of her genitalia would throw any light on. And yet, the irritation, you might think, was consistent with touching in the area of the vagina, as she described and demonstrated with the rubbing in circles in that area in that interview with police.”
Defence counsel then addressed the jury. He did not mention the impugned evidence.
The trial judge began summing up. From about 4.30 pm to 4.45 pm, his Honour gave the jury the usual directions, including that the Crown prosecutor’s opening address and her final address were not evidence, but arguments. His Honour told the jurors:
“You can properly take those arguments into account when evaluating the evidence, but the extent to which you do so is entirely a matter for you.”
Trial day 4
The trial judge resumed summing up at about 9.30 am on Monday 27 November 2021. His Honour gave the usual direction about drawing inferences from facts, including:
“However, you may only draw reasonable inferences. And inferences must be based on facts you find proved by the evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition, guessing, or speculation. Importantly, if there is an inference available, or an inference reasonably open which is adverse to the defendant, that is one pointing to his guilt, and an inference reasonably open which is in his favour, that is one consistent with innocence, you may only draw an inference consistent with guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.”
With respect correctly, the trial judge directed the jury that the only evidence capable of proving each count was the child’s evidence. His Honour gave this direction separately in respect of each count. He told the jury that to find either count proved, they would have to be satisfied beyond reasonable doubt of the reliability of that part of the child’s evidence. The trial judge also directed the jury that any doubt with respect to the child’s evidence in connection with one count should be considered when assessing her overall credibility and, therefore, when deciding whether her evidence is reliable in relation to the other count, in accordance with R vMarkuleski.[1]
[1](2001) 52 NSWLR 82, [186], [188]-[190] (Spigelman CJ).
Later, in summarising the case put by the Crown prosecutor, the trial judge told the jury:
“She submitted to you that [the child] presented with an irritation at the hospital, and it is a matter for you whether you think that is not unusual for a young girl to have a not unusual, if not normal, presentation like that.”
The jury retired to deliberate at about 10.50 am.
By about 12.25 pm, the jury had asked to see the child’s recorded police interview again. They returned to the courtroom at about 12.30 pm where the recording was replayed. There was a lunch break and then the balance of the police interview was played. It was followed by replaying the prerecorded cross-examination of the child. The trial judge then reminded the jury of the appellant’s record of interview, including the answers he gave indicating his innocence, and how those answers may be used in deliberations. The jury returned to their deliberations at about 3.45 pm. At about 4.09 pm they delivered their verdicts, finding the appellant guilty on each count.
The nature and effect of the impugned evidence at the trial
Proof of the appellant’s guilt depended on the jury accepting the child’s evidence in respect of each count. In this important respect, there were apparent inconsistencies in the child’s various accounts of what had happened.
The jury twice saw the recording of the child’s police interview the day after the alleged offending. In this interview, the child gave several different versions of the same events. The Crown case was based on parts of these differing versions. In the prerecorded cross-examination, made nearly a year after the alleged offending, the child contradicted parts of her recorded police interview. The child’s mother, sister and the sister’s boyfriend gave evidence of the child’s preliminary complaints of the alleged offending. Their evidence of the child’s accounts differed in other ways from the recorded police interview and from the case advanced by the Crown at the trial. According to the admissions, at the hospital, the child gave three conflicting accounts, including at one point denying “that she was touched or interfered with or that any trauma happened to her.”
The impugned evidence could not rationally affect the probability that the appellant touched the child in the way the child had described in respect of count 2. No one contended it was relevant to count 1. The initial reaction of the trial judge to the impugned evidence was, with respect, correct.
Neither the impugned evidence nor the admissions taken as a whole were a proper basis for the Crown prosecutor’s statement in her opening address that the urine test results were indicative of some irritation to the child’s vagina. Nor were these a proper basis for the Crown prosecutor’s suggestion to the jury in her final address that the jury might think the irritation was consistent with touching in the area of the child’s vagina, as the child had described in her recorded police interview.
In the admissions, the only references to the child’s “genitalia” and “private parts” were to the child’s refusal to allow them to be examined at the hospital. As already observed, the child refused to be examined by one paediatric doctor on 29 December and by another paediatric doctor on 30 December 2021. Only a urine sample was taken and tested. Confusingly, the admissions also state that the child was “examined” at the hospital on 30 December 2021, although she was “not a willing participant” and that on examination, “there was no tenderness or guarding.”
From the unproven premise that the doctor had concluded there was irritation to the area of the child’s vagina, the Crown prosecutor invited the jury to speculate that the cause of the irritation was the offending conduct alleged against the appellant in respect of count 2.
In the context of the trial, when the Crown prosecutor described the impugned evidence as “consistent” with the child’s evidence on count 2, it conveyed to the jury that the impugned evidence corroborated the child’s evidence. The impugned evidence was put as the opinion of a doctor. It carried the significant weight associated with the professional view of an independent medical specialist.
Defence counsel did not seek a direction to the jury that they should disregard the impugned evidence, or that the Crown prosecutor had inaccurately described the impugned evidence, or that it would be wrong to follow the Crown prosecutor’s suggestion and think that the impugned evidence was consistent with the child’s prerecorded evidence in respect of count 2 or that the impugned evidence corroborated it. No such direction was given to the jury.
In circumstances where the trial judge was not called upon to rule as to the admissibility of the impugned evidence (as it was tendered as admissions), there was no wrong decision of any question of law for the purposes of the second limb of s 668E(1) of the Code. The question is whether there was a miscarriage of justice within the meaning of the third limb of s 668E(1) because of the impermissible use of the impugned evidence by the Crown prosecutor and the absence of any direction that it could not be used in that way.
The test to be applied in determining whether there has been a miscarriage of justice was summarised in the majority judgment in HCF v The Queen, namely that:
“…there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict…or ‘realistically [could] have affected the verdict of guilt’…or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.[2]
[2](2023) 97 ALJR 978; [2023] HCA 35, [2] (Gageler CJ, Gleeson and Jagot JJ).
An application of the relevant test in the present case supports a conclusion that there was a miscarriage of justice. Even if the test to be applied should focus on whether the error had the capacity to affect the outcome rather than whether or not it might or might not have actually done so (as is suggested in the minority judgment in HCF), the error in this case did have the capacity to affect the verdict.
This was not an instance of minor inaccuracy. Considering the whole of the record of the trial, the true nature of the impugned evidence, the way it was misdescribed by the Crown prosecutor, its apparent weight, and its direct relationship to the critical issue of the reliability and credibility of the child’s evidence, and the absence of any direction to the jury dealing with these matters, there was a “real chance” that it affected or “realistically could have affected” the verdicts of guilt.
Correctly, the Crown concedes that the proviso in s 688E(1A) of the Code cannot apply in the circumstances where the impugned evidence was impermissibly used to corroborate the child’s evidence and bolster her credibility and reliability.[3]
[3]Orreal v The Queen (2021) 274 CLR 630, 641 [20]-[22] (Kiefel CJ and Keane J), 649 [43] (Gordon, Steward and Gleeson JJ, citing Kiefel CJ, Bell, Keane and Gordon JJ in Collins v The Queen (2018) 265 CLR 178, 191-192 [36]).
The orders noted above having been made, it is not necessary to deal with the appellant’s other grounds of appeal or with his application for leave to appeal against the sentence imposed by the learned trial judge.
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