R v Spierenburg

Case [2016] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v Spierenburg [2016] QCA 93

PARTIES:

R
v
SPIERENBURG, Nicolaas Wesley
(appellant)

FILE NO/S:

CA No 201 of 2015
DC No 1579 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 28 August 2015

DELIVERED ON:

15 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2016

JUDGES:

Gotterson and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty at trial by a jury of one count of indecent treatment of a child under 16 years of age, the child being under 12 – where the appellant lived on the lower level of a two-storey house, the upper level being occupied by the complainant, her siblings, and her mother – where the appellant and the complainant’s mother had previously been engaged before they separated and the complainant’s mother married another man, who is the father of the complainant and her siblings – where that marriage failed and the appellant moved into the lower level of the house – where the appellant and the complainant’s mother were on no more than friendly terms and the children got along well with the appellant – where it is alleged that one night the complainant requested of her mother to stay downstairs “to see what it is like” as she had not slept there before – where the complainant alleges she received consent from her mother to sleep downstairs – where the complainant is certain it was not one of the two times she went downstairs to watch a movie with one or more of her siblings – where the complainant alleges that when they got into bed, the appellant drew her close, put his hand down her pyjama pants and touched her on the outside of her vagina – where the complainant’s mother gave evidence at trial that there was no occasion where she gave consent for her daughter to sleep downstairs – where the appellant challenges the conviction on the basis that the complainant’s evidence was of poor quality and that the jury ought not to have been satisfied beyond reasonable doubt as to the appellant’s guilt – whether the verdict was unreasonable or insupportable having regard to the evidence

APPEAL AND NEW TRIAL – EVIDENCE – DISCRETION TO CONSIDER TRIAL JUDGE’S REPORT – where the learned trial judge gave a report under r 94 of the Criminal Practice Rules 1999 – where the learned trial judge wrote that “I did have some significant reservations about the verdict, particularly in view of the evidence given by the complainant, and the nature of the evolution of that complaint” – whether any weight should be given to the report of the learned trial judge

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R v Spierenburg [2016] QCA 93
Case
[2016] QCA 93
Decision Date

CaseChat Overview and Summary

The case of R v Spierenburg involves an appeal against a conviction for indecent treatment of a child under 16 years of age, with the child being under 12 years at the time of the incident. The appellant lived on the lower level of a two-storey house, with the complainant, her siblings, and her mother occupying the upper level. The appellant had previously been engaged to the complainant's mother before they separated and she married another man, who is the father of the complainant and her siblings. The appellant moved into the lower level of the house after the marriage failed, and the appellant and the complainant's mother were on friendly terms, with the children getting along well with the appellant.

The legal issues in this case revolve around whether the verdict was unreasonable or insupportable having regard to the evidence, particularly the quality and sufficiency of the complainant's evidence, and whether any weight should be given to the trial judge's report. The appellant argued that the complainant's evidence was of poor quality and that the jury should not have been satisfied beyond reasonable doubt as to the appellant's guilt. The complainant testified that she had permission from her mother to sleep downstairs, while the mother denied this. The trial judge gave a report under r 94 of the Criminal Practice Rules 1999, stating that they had some significant reservations about the verdict, particularly in view of the evidence given by the complainant.

The court concluded that it should make an independent assessment of the evidence, both as to its quality and sufficiency, and should decline to act on the opinion in the trial judge's report. The court found that the opinion in the report was based substantially, if not solely, on the complainant's evidence, which was recorded on DVD and presented to the jury in that form. The court determined that it should make an independent assessment of that same evidence, in that same form, and should not act on the opinion in the report. The court further found that the jury was entitled to reject the complainant's evidence and accept the evidence of the complainant's mother, and that the appeal should be dismissed.

The appeal is dismissed, and the conviction stands. The court did not consider it necessary to view the video recordings of the complainant's evidence or her police interview, as the absence of a recording of the complainant's mother's evidence meant that the use of the video recordings would be affected. The court agreed with the reasons given by Morrison JA that the appeal should be dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In her pre-recorded evidence in chief, P identified a part of the police interview that she said was, in fact, incorrect. That was as to whether one particular brother was at home or not. Otherwise she affirmed what she had said in the interview. Her account, under cross-examination, was:(a)she went downstairs because she wanted to see what it was like; she hadn’t slept down there before;[19][19]AB 17.(b)she was positive that she did not go down to watch a movie;[20] her sister was not there; the occasion when she had gone down to watch a movie Ice Age “was a completely different night”;[21] she was definite that the Ice Age occasion was not the night when Mr Spierenburg touched her;[22][20]AB 17.[21]AB 17, 19.[22]AB 19-20.(c)her mother said it would be cold;[23][23]AB 17.(d)she was definite, in the face of aggressive questioning, that her mother had given her permission to sleep downstairs;[24] she said “I remember her saying yes, I can … ‘Yes, you can go downstairs but be careful it might be cold’”;[25](e)Mr Spierenburg showed her photos on the computer and the things to do with them, like zooming in and out, distorting and flipping them;[26](f)she could not recall what she did between looking at the computer and going to bed: “If I said I did something I would be lying because I can’t remember”;[27](g)when they went to bed Mr Spierenburg pulled her close “and started touching my rude part”; at that time she was lying on her side, facing away from him;[28](h)she was wearing her “kitty silk” pyjamas;[29](i)he lifted up the elastic band at her waist and put his hand down the front; he “started touching my rude part in little circles – like, going around in the outside and started feeling my rude part”;[30] he “got his finger out and … did it in a circle – like, a circle on the outside of it – like, an entire circle”;[31](j)she was scared, petrified, and fell asleep;[32](k)she forgot about it until she told her father while at his house;[33] she told her father “So he could do something about it”;[34] she explained that she did not like having Mr Spierenburg there “because he would always get mad and stuff”,[35] so she told her father to see if he could do something about it;[36] then, in answer to the leading question “[t]o get [him] out of the picture?”, she agreed but said “not kill him as such”, but “just get him out of the picture”, “[i]n a way, yes”;[37](l)she explained the forgetting of what happened: “I woke up that morning and I put my mind straight off it so then I would forget about it and nothing would happen. But then I had to remember it, because I learnt that lesson that if you were to be assaulted in that way it’s illegal, so I had to tell my dad”;[38](m)she was prompted to tell her father because of a lesson at school, where they were told that if they were touched in such a way then it was illegal; “so I had to tell my dad”.[39][24]AB 20.[25]AB 21.[26]AB 21, 23.[27]AB 21, 23.[28]AB 23.[29]AB 24.[30]AB 24.[31]AB 25.[32]AB 25.[33]AB 26.[34]AB 27.[35]AB 27.[36]AB 28.[37]AB 28.[38]AB 29.[39]AB 29.The mother’s evidence

Decision

Reasons for decision

In my view, whilst this Court should be cautious about declining to act on a trial judge’s report,[86] there is good reason in this case why it should not be acted upon. The task of this Court, given the ground of appeal, is to make an independent assessment of the whole of the evidence, both as to its quality and sufficiency.[87] The opinion expressed in the report is based substantially, if not solely, on P’s evidence, all of which was recorded on DVD, and presented to the jury in that form. This Court must make an independent assessment of that same evidence, in that same form. In that situation, this Court should decline to act on the opinion in the report.[86]K v R; R v K ex parte A-G (Qld) [2002] QCA 260, at [26].[87]SKA at [14].Conclusion and orders For the reasons given above, the appeal should be dismissed. I would propose the following order:1.The appeal is dismissed. PHILIP McMURDO JA: I have not watched the recording of the complainant’s evidence or her police interview. Mr Heaton QC, for the appellant, said that there would be some utility in doing so, for what might be made of the complainant’s demeanour. But as he also said, the use which might be made of the recordings was affected by the absence of a recording of other witnesses. Most importantly, there was no video recording of the evidence of the complainant’s mother. Only by rejecting her evidence could the jury have reasoned to a verdict of guilty. That circumstance, in my view, provided a good reason not to view the video recordings in this case, just as it did in SKA v The Queen.[88][88](2011) 243 CLR 400. See especially 410 [29] per French CJ, Gummow and Kiefel JJ. Otherwise I agree that for the reasons given by Morrison JA, the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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