R v WBA - [2015] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBA [2015] QCA 21

PARTIES:

R
v
WBA
(appellant)

FILE NO:

CA No 159 of 2014
DC No 209 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

Orders delivered ex tempore 5 February 2015
Reasons delivered 27 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2015

JUDGES:

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

ORDERS:

Delivered ex tempore on 5 February 2015:

The appeal be allowed.1.

The verdicts of guilty be set aside and verdicts of acquittal entered.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of attempted rape and two counts of procuring a child under 16 years to commit an indecent act – where there were contradictions in the evidence of the complainant ere the evidence of the complainant was contradicted by other witnesses – whether the convictions were unsafe and unsatisfactory

Criminal Code (Qld), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v BAT[2005] QCA 82, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

T Ryan for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant was found guilty by a jury on one count of attempted rape (as an alternative to the charge of rape in the indictment) and two counts of procuring a child under 16 years to commit an indecent act with the circumstances of aggravation that the child was under 12 years, that the child was, to the knowledge of the appellant, his lineal descendant and that the appellant had the child under his care for the time being. The appellant has appealed against his convictions on two grounds. The first ground was that the convictions were unsafe and unsatisfactory. The second ground was that a miscarriage of justice resulted from the trial judge’s failure to give the jury a warning which was said to be required by the High Court’s decision in Robinson v The Queen.[1] The appellant also applied for leave to appeal against his sentence on the ground that the sentence was manifestly excessive.
[1](1999) 197 CLR 162.
At the hearing of the appeal the Court ordered that the appeal against conviction be allowed, the convictions be set aside, and that acquittals be entered upon the three counts in the indictment. What follows are my reasons for joining in those orders.
The first ground of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v WBA

Details

AGLC: R v WBA [2015] QCA 21
Case: [2015] QCA 21
Decision Date: 5 February 2015

CaseChat Overview and Summary

The appellant was convicted of one count of attempted rape and two counts of procuring a child under 16 years to commit an indecent act. The case of R v WBA was heard in the Queensland Court of Appeal. The primary issue for the Court was whether the convictions were unreasonable or unsatisfactory, having regard to the evidence presented. Specifically, the Court had to assess whether the verdict was supported by the evidence and whether there was a significant possibility that an innocent person had been convicted.

The Court of Appeal found that the evidence presented had significant inconsistencies and contradictions that undermined the reliability of the complainant's testimony. The Court noted that while the jury had the advantage of observing the complainant, the inconsistencies in her evidence and the contradictions with other witnesses' statements made it difficult to rely on her testimony as a sole basis for conviction. The Court concluded that, given these issues, it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences. As a result, the convictions were deemed unsafe and unsatisfactory.

As a result of the Court's decision, the appeal was allowed. The verdicts of guilty were set aside, and verdicts of acquittal were entered in their place. This ruling ensures that the appellant's convictions are overturned based on the identified flaws in the evidence.

Orders

Orders of the court

Delivered ex tempore on 5 February 2015:

The appeal be allowed.1.

The verdicts of guilty be set aside and verdicts of acquittal entered.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first ground of appeal, that the convictions were unsafe and unsatisfactory, invoked the ground in s 668E(1) of the Criminal Code that “the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence…”. This ground of appeal requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted;[2] if, after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the court is bound to act and to set aside a verdict based upon that evidence.”[3][2]MFA v The Queen (2002) 213 CLR 606 at 614-615; SKA v The Queen (2011) 243 CLR 400 at 406 [14], 408 [21].[3]M v The Queen (1994) 181 CLR 487 at 525, quoted in MFA v The Queen at 623-624.Outline of the evidence at trial The Crown case depended upon the evidence of the complainant, who is the appellant’s daughter. Her evidence was contained in a recorded police interview made in November 2012 when she was 11 years old (about a year after the alleged offences), and in her oral testimony at a pre-recorded hearing in May 2014 when she was nearly 13 years old. In the police interview the complainant said that the offences occurred on three separate occasions towards or after the end of the school year in 2011, when she was 10 years old. The complainant often slept in her parents’ bed. Her mother was regularly required to leave for work very early in the morning. The complainant told police that on the first of the three occasions she woke up in her parents’ bed and saw the appellant using a sex toy. The complainant said that she complied with the appellant’s request to rub the sex toy up and down his penis. After the appellant ejaculated the complainant had a shower and got ready for school. The complainant said that a day or two later the appellant was in the shower with the complainant in the morning and he asked her to masturbate him. She did so but refused his request to fellate him. The third and most serious offence was alleged to have been committed a day or two after the second occasion. The complainant told police that one morning she woke up lying on her back on her parents’ bed with the naked appellant on top of her. The complainant pretended she was still asleep. She said that she could see that the appellant was raping her and she felt his penis inside her vagina, hurting her. The complainant said that the appellant was holding her legs below her knees and moving her up and down, her underwear and pyjama pants had been pulled down to her knees, the appellant was kneeling, her legs were on either side of the appellant’s stomach, and her feet were behind the appellant. Later in the interview the complainant said that her pyjama pants were on the ground but she repeated that her underpants were around her knees. The interviewing police officer, who conducted this difficult interview in a calm, compassionate, and skilful way, told the complainant that it was difficult to understand how the complainant’s underpants could have been around her knees whilst her legs were on either side of the appellant during the events she described. The complainant maintained the version she had given. The complainant said that after the appellant left the bed she pretended that nothing had happened. When she showered she noticed that her vagina hurt.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There was other evidence in the Crown case, including testimony by the complainant’s brother and two half-sisters, but this evidence did not have a significant bearing upon the reasonableness of the verdicts.Consideration Counsel for the appellant argued that various weaknesses, inconsistencies and contradictions in the evidence within the Crown case rendered the guilty verdicts unreasonable. Counsel for the respondent acknowledged the accuracy of the matters identified by the appellant’s counsel and that they raised relevant issues, but submitted that all of those issues were drawn to the attention of the jury in the summing up and that the jury was entitled to find as it did. In R v BAT[4] Keane JA (with whose reasons MacPherson JA and Douglas J agreed) observed that:“Since M v The Queen, it has been consistently held by this Court that inconsistencies and deficiencies in a complainant’s evidence may reasonably be regarded as of little moment by the jury who has seen the complainant and enjoyed the advantage of observing her reactions and responses when tested with these inconsistencies and discrepancies.”[4][2005] QCA 82 at [28]. Some of the numerous matters upon which the appellant relied were inconsistencies or deficiencies of that kind. Of themselves they would not have justified the strong step of setting aside a jury verdict. Those matters included the following: according to the evidence of the complainant and her mother, the complainant continued to sneak into her parents’ bed through into 2012, well after the time of the alleged sexual assaults by the appellant, even though the complainant’s mother regularly left for work early in the morning, leaving the complainant alone in the bed with the appellant; in the period of about one year after the alleged offences the complainant did not complain about them to her mother, her maternal grandmother, or any other person, although she acknowledged in evidence that she could say anything to Salvation Army staff at a place she regularly attended; the complainant’s account in the police interview that the offences occurred towards the end of 2011 was inconsistent with evidence she gave in the pre-recorded hearing that they occurred before the September school holidays in 2011; the complainant’s evidence that the incident in the shower happened after the alleged rape was inconsistent with the order of the events she described in the recorded police interview; and some intimate details of the alleged offences given by the complainant in her testimony contradicted statements about the same matters in her police interview. A concerning aspect of the complainant’s evidence was her description of the most serious alleged offence in her recorded police interview (see [(6)] of these reasons). That description understandably puzzled the interviewing police officer. It is difficult to understand how the alleged offence could have occurred in the way the complainant described. However, this case did not involve only inconsistencies, deficiencies and discrepancies in the evidence of the complainant. There were also contradictions of critical aspects of the complainant’s account. The following contradictions were of particular significance:(a)The complainant stated and repeated in her police interview and early in her pre-recorded evidence that vaginal penetration had occurred and caused her vaginal pain which persisted in her subsequent shower, but CA was not shaken in her evidence that the complainant denied vaginal penetration and stated that anal penetration occurred. CA’s account was on its face apparently credible and reliable. The complainant did not refer the police officer to any conversation with CA.(b)In cross-examination of the complainant about the conversation described by CA, the complainant ultimately gave evidence that penetration may have occurred vaginally or anally and that she did not know which had occurred. That explanation contradicted many unequivocal statements in her police interview and in her evidence that her vagina had been penetrated.(c)The complainant’s mother’s evidence of the limited complaint to her did not match the complainant’s evidence about the same conversation, and the complainant’s mother apparently did not take any action about the complaint but went to work as usual on the following day. More significantly, the two other people whom the complainant identified as persons to whom she had complained dramatically contradicted her account of those complaints:(i) FE gave evidence that the complainant said that she had lied about the appellant touching her in order to get the appellant away from the family and the house.(ii) MC contradicted the complainant’s accounts that she complained of sexual misconduct by the appellant and gave evidence that the complainant instead said that the appellant had hit her.

CITATION:	R v WBA [2015] QCA 21
PARTIES:	R v WBA (appellant)
FILE NO:	CA No 159 of 2014 DC No 209 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	Orders delivered ex tempore 5 February 2015 Reasons delivered 27 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2015
JUDGES:	Fraser and Gotterson JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 5 February 2015: The appeal be allowed.1. The verdicts of guilty be set aside and verdicts of acquittal entered.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of attempted rape and two counts of procuring a child under 16 years to commit an indecent act – where there were contradictions in the evidence of the complainant ere the evidence of the complainant was contradicted by other witnesses – whether the convictions were unsafe and unsatisfactory Criminal Code (Qld), s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v BAT[2005] QCA 82, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	T Ryan for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent