R v WBF

Case [2017] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBF [2017] QCA 142

PARTIES:

R
v
WBF
(appellant)

FILE NO/S:

CA No 307 of 2016
DC No 815 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Leave to Adduce Evidence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 October 2016

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2017

JUDGES:

Morrison and Philippides JJA and Atkinson J
Joint reasons for judgment of Morrison JA and Atkinson J; separate reasons of Philippides JA, concurring as to the orders made

ORDERS:

1.   The application to adduce evidence is refused.

2.   The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant sought to adduce copies of the complainant’s medical records from the Caboolture and Redcliffe Hospitals – where the evidence was available to the appellant’s lawyers at the time of the trial – where the trial judge made no ruling in relation to the evidence – where the appellant submitted that the medical notes would have revealed inconsistencies in the complainant’s evidence – where the appellant submitted that the medical records were necessary to provide an explanation for his responses to the complainant’s allegations during a pretext call – whether the evidence would have been deleterious to the appellant’s defence at trial – whether leave to adduce the medical records should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial by jury of seven counts of indecent treatment of a child under 16 with the circumstance of aggravation that the child was a lineal descendant (counts 3 – 5 and 7 – 10) and two counts of indecent treatment of a child under 16 with the circumstances of aggravation that the child was under 12 and a lineal descendant (counts 1 – 2) – where the appellant submitted that there were inconsistencies in the complainant’s evidence – where the complainant’s uncle, friends and mother also gave evidence – where a recording of a pretext phone call was admitted into evidence – whether the complainant’s account was supported by other evidence – whether there were significant inconsistencies in the complainant’s evidence – whether on an assessment of the evidence as a whole the verdicts of guilty were open to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant sought to adduce evidence consisting of the complainant’s medical records from the Caboolture and Redcliffe Hospitals – where the appellant submitted that a miscarriage of justice occurred because the whole of the evidence was not available to the jury – where the appellant submitted that the medical records revealed inconsistencies in the complainant’s evidence – where the appellant submitted…

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R v WBF [2017] QCA 142
Case
[2017] QCA 142
Decision Date

CaseChat Overview and Summary

In the matter of R v WBF, the appellant sought to appeal his convictions and sentences on various grounds. The appellant, who was the father of the complainant, was convicted by a jury of seven counts of indecent treatment of a child under 16 with the circumstance of aggravation that the child was a lineal descendant, and two counts of indecent treatment of a child under 16 with the circumstances of aggravation that the child was under 12 and a lineal descendant. The appellant was acquitted of one count of attempted rape. The appellant raised several grounds for appeal, including the submission that the verdicts were unreasonable and not supported by the evidence, the alleged error in excluding certain medical records, the improper admission of a recording of a pretext phone call, and the inconsistency between the acquittal on the attempted rape charge and the convictions on the other counts.

The court considered the evidence presented at trial, including the complainant’s testimony, which was recorded under specific sections of the Evidence Act. The court noted that the complainant had provided a detailed account of the alleged incidents, which were supported by other witnesses and evidence. The court also examined the recording of the pretext phone call and assessed whether the admissions made by the appellant were voluntary and reliable. The court further assessed whether the acquittal on the attempted rape charge was inconsistent with the convictions on the other counts.

In its reasoning, the court concluded that the jury, having seen and heard the evidence, was reasonably open to being satisfied beyond reasonable doubt that the appellant was guilty of the offences. The court found that the exclusion of the medical records did not lead to a miscarriage of justice, as the records were available to the appellant's legal team at the time of the trial and no ruling was made by the trial judge regarding their admissibility. The court also held that the recording of the pretext phone call was properly admitted and the admissions made by the appellant were voluntary and reliable. Finally, the court found that there was a rational explanation for the acquittal on the attempted rape charge and that the convictions on the other counts were not inconsistent with this acquittal.

The court dismissed the appeal and refused the application to adduce further evidence. The convictions and sentences as determined by the trial jury were upheld.

Orders

Orders of the court

1. The application to adduce evidence is refused.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Recently this Court re-stated the principles in R v Clapham:[7]“[4] The principles to be applied in determining whether a verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are collected in SKA v The Queen. The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and 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 offence of which he was convicted. In considering this ground of appeal the “starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses”, but:‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’[5]In R v Baden-Clay the High Court emphasised that the jury is “the constitutional tribunal for deciding issues of fact” and observed that, “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … 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”, “a court of criminal appeal is not to substitute trial by an appeal court for trial by jury”, and “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’.”[7][2017] QCA 99 at [4]-[5]. Internal references omitted.The complainant’s evidence Z’s evidence consisted of a transcript of a police interview, tendered under s 93A of the Evidence Act 1977 (Qld). In addition, her trial evidence was pre-recorded under s 21AK of the Evidence Act. Z was about 16 at the time of the interview and nearly 17 at the time of her pre-recorded evidence. At the start of her pre-recorded evidence Z confirmed that what she told the police in the interview was the truth. When reviewing Z’s evidence we shall identify the counts to which the particular evidence relates.The police interview During the interview, Z gave her first account of the events. She commenced with a general statement that her father had done really bad things to her, starting when she was about six.Count 1 – watching a pornographic video

Decision

Reasons for decision

We agree with the conclusions reached by Philippides JA in respect of the remaining grounds.Conclusion We agree with the orders proposed by Philippides JA. PHILIPPIDES JA: The appellant was convicted after a trial by jury of seven counts of indecent treatment of a child under 16 with the circumstance of aggravation that the child was a lineal descendant (counts 3-5 and 7-10) and two counts of indecent treatment of a child under 16 with the circumstances of aggravation that the child was under 12 and a lineal descendant (counts 1-2). The appellant was also charged with one count of attempted rape (count 6) but was acquitted of that charge. The appellant was granted leave to amend his notice of appeal to raise the following grounds:1.The verdicts were unreasonable and cannot be supported having regard to the evidence.2.There has been an error of law, or a miscarriage of justice, as a result of the trial judge ruling that documents from the Caboolture and Redcliffe Hospital records containing purported notes of conversations between the complainant and others were not admissible in evidence.3.The trial judge erred in admitting a recording of a conversation between the appellant and complainant (the pretext call).4.The acquittal on count 6 was so inconsistent with the convictions on the remaining counts as to suggest unreasonableness.The evidence at trial The complainant’s evidence The appellant is the father of the complainant, who was born on 25 October 1999. The complainant’s evidence was received by way of a s 93A interview recorded with police officers on 13 June 2015[152] and pre-recorded evidence before the trial on 13 October 2016. She told police that, starting when she was six years old, the appellant had shown her pornographic movies, masturbated in her presence, ejaculated on her and attempted sexual intercourse with her.[153][152]AB at 247 (the title page of the transcript of the interview has the correct date but the header on subsequent pages erroneously refers to 2016 instead of 2015).[153]AB at 249.38‑250.17. In respect of the specific allegations the subject of the indictment, the evidence given by the complainant may be summarised as follows:Count 1 The complainant’s evidence was that some time when she was six years old, the same year that her cat died, the appellant asked her if she wanted to watch The Little Mermaid. He took her into the lounge room and played a video on a laptop computer. The video depicted a man and a woman having sex. It played for about an hour.[154][154]AB at 265.1-50; 266.25-37; 269.30-270.33. In cross-examination it was suggested, but not accepted by the complainant, that the cat died in 2007.[155] This differed from the evidence given by the complainant’s mother that the cat died in 2007, which was also the evidence of the appellant.[156][155]AB at 36.28-36.[156]AB at 98.31; 153.27-29.Count 2 The complainant’s evidence was that one Saturday, just before the complainant’s birthday party when she was in grade six, the appellant was driving her home from gymnastics. He exposed his penis in the car and said they could play a game at the party where a rubber band was placed around the appellant’s penis and the girls have to remove it with their mouths. The appellant handled his exposed penis and ejaculated onto her shirt.[157] In cross-examination it was suggested, but not accepted by the complainant, that she did not begin attending gymnastics until 2013.[158][157]AB at 249.46-55; 298.46-299.58.[158]AB at 38.20.

Ratio Decidendi

Legal Principle Established

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