R v Vlies

Case [2016] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vlies [2016] QCA 276

PARTIES:

R
v
VLIES, Gary McKenzie
(appellant/applicant)

FILE NO/S:

CA No 157 of 2015
DC No 167 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 26 June 2015; Date of Sentence: 26 June 2015

DELIVERED ON:

1 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2016

JUDGES:

Gotterson and Philippides JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted, after trial, of one count of maintaining a sexual relationship with a child, one count of indecent treatment of a child under sixteen and under twelve, two counts of indecent treatment of a child under sixteen, two counts of attempted rape, one count of rape, two counts of taking indecent photographs of a child under sixteen and one count of possessing child exploitation material – whether the alleged inconsistencies in the complainant’s evidence rendered the verdicts unsafe or unreasonable – whether the lack of medical evidence raised a question about the complainant’s reliability – whether the evidence as to the appellant’s medical conditions rendered the verdicts unsafe or unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where evidence was adduced by witnesses as evidence of preliminary complaint – where the appellant submitted that the evidence of each preliminary complaint witness was inconsistent with the complainant’s evidence – whether these inconsistencies meant that the evidence was wrongly admitted as evidence of preliminary complaint or, alternatively, should have been excluded as being highly prejudicial and possessing little to no probative value

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant submitted that an additional direction needed to be given in relation to the complainant’s credibility – whether the directions were adequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was sentenced to five years imprisonment for the maintaining count, two years imprisonment for each of the indecent treatment, attempted rape, taking indecent photographs and possessing child exploitation material counts and three years imprisonment for the rape count – where the sentences were to be served concurrently with each other but cumulatively upon sentences imposed on an earlier date for distinct offending that post-dated this offending – where the appellant submitted that the sentencing judge failed to consider the impact of the appellant’s medical conditions – where the appellant contended that the sentencing judge failed to consider totality when imposing cumulative sentences – whether the…

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R v Vlies [2016] QCA 276
Case
[2016] QCA 276
Decision Date

CaseChat Overview and Summary

In the case of R v Vlies, the appellant contested his conviction on multiple counts related to sexual offences against a child, as well as an appeal against his sentence. The primary issue before the court was whether the verdicts were unreasonable or unsafe given the evidence presented, particularly focusing on the consistency of the complainant's testimony and the lack of medical evidence to corroborate her account. Additionally, the appellant challenged the admissibility of certain evidence regarding preliminary complaints, claimed there were misdirections or non-directions concerning the complainant's credibility, and argued that his sentence was manifestly excessive.

The court examined the thoroughness of the jury's deliberations and the trial judge's comprehensive directions, which emphasised the need for careful scrutiny of the complainant's evidence. The court found no deficiency in the trial judge's directions and concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt based on the evidence. Regarding the sentence, the court considered the appellant's medical conditions and criminal history, but ultimately found that the trial judge had appropriately balanced these factors in imposing a sentence that was not manifestly excessive.

In dismissing the appeal against conviction and the application for leave to appeal against sentence, the court adhered to the principle that the jury's role as the constitutional tribunal for deciding issues of fact should not be undermined lightly. The court reiterated that the appeal court should not substitute its judgment for that of the jury unless the verdict was clearly unreasonable or unsafe. The evidence presented, including the complainant's testimony and the trial judge's direction, supported the jury's conclusion.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The offences that were the subject of the 10 count indictment were alleged to have occurred over a period of two and a half years.The complainant’s evidence The complainant was born in January 1996. On 17 August 2011, she gave a statement in accordance with s 93A of the Evidence Act 1977 (Qld). That statement was tendered at trial and, in addition, the complainant gave evidence before the jury. The primary evidence in support of the charges was based on the complainant’s s 93A statement. She was also cross-examined. The complainant said that she and her mother met the appellant through S, a close family friend. She and her mother would visit the house of the appellant and his wife and stay for a few days at a time at their house. Some months later, the complainant and her mother moved into the appellant’s house.[1][1]The complainant’s mother gave evidence that the complainant commenced spending more and more time at the appellant’s house before they went to live with him for about six months. The complainant gave an account of having “growing pains” and that her legs were sore. The appellant said he was a “professional masseuse” and that he could make her “legs feel better”. The complainant’s evidence was that, after the third massage, the appellant started touching her sexually in a variety of ways every time he massaged her. Her evidence was that this occurred in a room with the door closed and “barricaded”.[2] The massages stopped when the complainant and her mother moved to the Sunshine Coast at the beginning of 2008.[2]The complainant’s mother also gave evidence that these massages took place behind a closed door (AB When the massages took place, she could not hear any noise coming from the room because the TV was on.Count 1 In relation to the maintaining charge, the evidence relied upon by the prosecution were the acts that comprised counts 2-7, together with other sexual acts identified, but not particularised, by the complainant in her evidence. These included acts of which the complainant gave evidence, including: the appellant “twiddling” the complainant’s vagina with his fingers; repeatedly using vibrators on her;[3] telling the complainant to take her clothes off so he could look at her entire body; lying beside her while he “did stuff” to her; repeatedly licking her vagina while massaging her; putting his penis “into [her]” a number of times; putting or trying to put vibrators into her vagina or bottom; pushing his penis against her vagina or bottom a number of times; sucking her vagina; and putting his finger in her vagina.[3](although none were located during the police search of the appellant’s caravan in 2013).Count 2 The complainant’s evidence was that count 2 occurred when the complainant was staying with the appellant but prior to her moving into the appellant’s house. He gave the complainant a massage, which he had previously done three times before. However, on this occasion, the appellant told the complainant to remove her underwear. He then touched her on the vagina, and ran his fingers between “all the crevices”. The appellant gave “sex talks … while he was doing it … showing where everything is like … this … hole where the penis is supposed to go in”. The appellant told the complainant, “it’s okay, just don’t let anybody else do it”. The complainant said she felt uncomfortable but “didn’t know what he was doing because … I was so young, I didn’t understand it”. The complainant’s mother was in the lounge room at the time.Count 3

Decision

Reasons for decision

In my view, no deficiency in the directions can be demonstrated. The trial judge gave comprehensive and careful directions to the jury that were appropriate to the case.Conclusion The jury received appropriate directions as to the need to scrutinise the evidence of the complainant with great care. The trial judge in particular emphasised that the jury was required to assess whether there were inconsistencies in the preliminary complaint evidence and the evidence of the complainant generally and determine the weight and significance of the inconsistencies. The jury also enjoyed the considerable advantage of hearing and seeing the witnesses. In my view, on the evidence before the Court it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charged counts.Application for leave to appeal against sentenceSentencing remarks In imposing sentence, the trial judge had regard to the nature and duration of the present offending, which occurred over a period of approximately two and a half years. His Honour noted that while the offending was serious and the appellant had taken advantage of a family to whom he had given shelter, it was not aggravated by occurring in the context of a family relationship. There were also no threats, no violence and no injuries of a physical kind. Nevertheless, his Honour concluded that the appellant had taken advantage of a naïve mother and deliberately developed a relationship with the complainant in order to commit the offences. The trial judge made reference to the complainant’s victim impact statement. His Honour noted that the appellant’s conduct had placed the complainant “in a very vulnerable state”, with significant effects on her health and wellbeing; impairment in her ability to relate to partners and her own child; and difficulty sleeping. Having to view the photos that comprised counts 8 and 9 made her feel sick. His Honour had regard to the appellant’s age; he was 74 when sentenced and aged 62 to 67 during the period of offending. In the appellant’s favour, it was noted that he had a good work history and had previously engaged in community work. The appellant had adult children. His wife was considered “likely to stand by” him. The trial judge made reference to the appellant’s medical conditions, which included stable and minimally symptomatic ischemic heart disease without cardiac failure, coupled with a moderate aortic stenosis, peripheral vascular disease with coarctation, cerebrovascular disease with evolving cerebral ischemia and vascular dementia. His Honour noted that the appellant’s angina had increased since being imprisoned and he had been placed in a medical unit on a permanent basis. The trial judge considered the appellant’s medical conditions as relevant to the sentence to be imposed but referred to defence counsel’s concession that the condition did “not overwhelm the sentencing that would otherwise be imposed”. His Honour referred to the appellant’s criminal history of a similar nature, comprising convictions for maintaining and also for indecent treatment of a child under 12, for which the appellant, as already mentioned, was sentenced, after trial, on 7 May 2015 to a period of two years and nine months imprisonment to be suspended after serving 16 months, with an operational period of five years. That period was made up of concurrent terms of imprisonment of two years and nine months and 18 months. That offending was committed between October 2012 and February 2013, when the appellant was 72 years of age, against a nine year old complainant. It post-dated the present offending. His Honour noted that, on that occasion, the sentencing judge had imposed a suspended sentence in order to provide a definite period of imprisonment before release.

Ratio Decidendi

Legal Principle Established

The long established approach referred to in M v The Queen[16] and MFA v The Queen[17] as to the primacy of the jury in criminal trials was recently reiterated in The Queen v Baden‑Clay,[18] where the High Court observed: [19]“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way …With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”[16](1994) 181 CLR 487.[17](2002) 213 CLR 606.[18][2016] HCA 35.[19][2016] HCA 35 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.The duration of the jury deliberations The issue of the duration of the jury deliberations, which was raised only faintly, may be dealt with immediately. The jury retired at 1.19 pm on 26 June 2015. They received a redirection at 1.28 pm and retired again at 1.32 pm. The jury returned with guilty verdicts, without further redirection, at 4.05 pm. The jury had the lunch period during which to deliberate. They also had the benefit of a very thorough summing up by the trial judge of the evidence and issues. There can be no basis for the suggestion that it should be inferred from the duration of the deliberations that the jurors did not properly attend to their task as jurors.The lack of medical evidence to support complainant’s account It is also convenient to address now the submissions made as to the evidence of the medical examination of the complainant. The doctor’s evidence was that the medical examination of the complainant neither supported nor contradicted the complainant’s evidence, especially as to digital penetration. While it was accepted that such evidence is generally described as neutral to the complainant’s allegations of sexual penetration, it was submitted on behalf of the appellant that, in this case, the absence of corroborating evidence raised a question about the complainant’s reliability.