R v WBH

Case [2019] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBH [2019] QCA 249

PARTIES:

R
v
WBH
(appellant/applicant)

FILE NO/S:

CA No 149 of 2018
DC No 816 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 May 2018; Date of Sentence: 25 May 2018 (McGill SC DCJ)

DELIVERED ON:

15 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2019

JUDGES:

Morrison and McMurdo JJA and Applegarth J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – INDECENT – where the appellant was convicted after a trial on one count of indecent treatment of a child under 16 – where the appellant was sentenced to three and a-half years’ imprisonment with parole eligibility set at 28 April 2019, after serving about 11 months – where the appellant challenges his conviction on a number of grounds – where it is contended that the verdict was unreasonable or cannot be supported having regard to the evidence – where it is contended that the learned trial judge erred in various ways, causing a miscarriage of justice – where the appellant submits that the learned trial judge erred by commenting to the jury about the evidence of the appellant’s sister and mother in a way that suggested that their evidence was less reliable than other witnesses who testified at the trial – where it is contended that the learned trial judge erred in failing to warn the jury against the danger of improperly using generalised evidence of sexual misconduct to conclude that the appellant was likely to be guilty of the charged offence – where it is contended that the trial judge erred in the admission of the appellant’s response to the accusation of his wife as evidence – where it is submitted that the learned trial judge erred by failing to direct the jury in accordance with the principles derived from Robinson v The Queen – where it is contended that there was a failure to direct the jury adequately regarding the appellant’s response to the accusations of his wife – where it is submitted that the time of the offence was material fact to be proved beyond reasonable doubt – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant seeks to challenge the sentence which was imposed upon him – where the appellant seeks to challenge his sentence on two bases – where it is contended that the sentence imposed was…

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AGLC
R v WBH [2019] QCA 249
Case
[2019] QCA 249
Decision Date

CaseChat Overview and Summary

The case of R v WBH involved the appellant, who was convicted of indecent treatment of a child under 16, specifically targeting COM. The appellant was sentenced to three and a half years' imprisonment, with parole eligibility set for 28 April 2019, following a period of approximately 11 months already served. The appellant challenged both his conviction and sentence, arguing that the verdict was unreasonable, and that the sentence was manifestly excessive and improperly calculated under the principle of totality. The appeal against the conviction was based on several grounds, including that the trial judge made comments suggesting that the evidence of the appellant's sister and mother was less reliable, failed to warn the jury against using generalised evidence of sexual misconduct, and did not properly direct the jury regarding the appellant's response to accusations made by his wife.

The court examined each of these arguments in turn. Regarding the comments about the evidence of the appellant's sister and mother, the trial judge had explained the role of the prosecutor in calling witnesses, including those whose evidence might be inconsistent with the Crown's case. The judge's comments did not suggest that the evidence was suspect, but rather that it was part of the prosecutor's duty to present a complete narrative. The court found that the judge's remarks were not prejudicial and did not undermine the reliability of the evidence. Additionally, the court found no error in the judge's failure to warn against the use of generalised evidence of sexual misconduct or in the admission of the appellant’s response to his wife’s accusations. The court concluded that the judge's directions to the jury were adequate.

The appellant also challenged the sentence, arguing it was manifestly excessive and that the principle of totality was not properly applied. The appellant's criminal history included previous offences of a sexual nature, and the victim impact statements highlighted the severe psychological and emotional damage caused by his actions. The court considered the totality of the offending and the appellant's criminal history, and found that the sentence was neither manifestly excessive nor did it misapply the principle of totality. The court held that the sentence was appropriate given the circumstances.

The court dismissed the appeal against the conviction and refused the application for leave to appeal against the sentence. Consequently, the conviction and sentence stand as imposed by the trial judge.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As distinct grounds were raised apart from the overarching ground of unreasonable verdict, I intend to deal with each of those points first, noting the competing submissions.Ground 2 – comments about the evidence of SOA and MOA In the course of the summing up the learned trial judge referred to the evidence of SOA and MOA, and the fact that their evidence was inconsistent with other evidence as to when the family stayed at the Toowoomba house. His Honour then said:[92]“Now, there is something I should explain to you because you may have been perhaps a little puzzled by the fact that the Crown prosecutor was calling two witnesses who, in substance, said that the offence could not have happened. The position is that the prosecutor is not limited simply to calling evidence which his evidence consistent with the Crown case.A prosecutor has a duty to call all witnesses who can give material and admissible evidence necessary to explain the unfolding of the narrative and a complete account of the events; and the obligation extends to calling a material witness even though the witness would give an account inconsistent with the Crown case. The fact that a prosecutor might suspect that the witness is not reliable is not aground on which a prosecutor is entitled to refuse to call a witness. There would have to be identifiable circumstances which clearly established unreliability. … and in this case … you should bear in mind, therefore, that the mere fact that the prosecutor called these witnesses does not mean that the prosecutor is putting them forward as witnesses consistent with the Crown case.”[92]AB1 52 lines 16-31. No objection was advanced then, nor is there one now, as to what his Honour had said to that point. It is the following passage which contains comments which, according to the submissions of Counsel for the appellant, suggested that the evidence of SOA and MOA was inferior when compared to the evidence of other witnesses, or suspect in some way. The learned trial judge went on:[93]“It has one other consequence that you may have noticed; and that is that the evidence that they gave was not tested by cross-examination in the ordinary way in which cross-examination of some of the other crown witnesses was tested. The witnesses were cross-examined; one of the differences between evidence in chief and cross-examination is that what are called leading questions – that is questions which suggest an answer – are allowed in cross-examination and you may have thought that defence counsel took advantage of that when cross-examining [SOA and MOA]. … [I]n these circumstances one of the consequences of calling the witness is that the prosecutor does not get the opportunity to test, by cross-examination, the evidence given by the witness. So, they’ve [sic] matters for you to consider in the sense that those two witnesses are in, in a sense, a different category from witnesses who are being subjected to the normal, hostile cross-examination which witnesses are commonly subjected to. And, to the extent that you would be assisted by that sort of testing by cross-examination that has not been present in this case.”[93]AB1 52 lines 33-47.

Decision

Reasons for decision

This ground fails.Conclusion on the conviction appeal For the reasons I have given above, there is no merit in any of the grounds of appeal, and the appeal should be dismissed.Application for leave to appeal against sentence The appellant was sentenced to three and a-half years’ imprisonment with a parole eligibility date fixed at 28 April 2019, that is after serving 11 months in custody. He seeks leave to appeal against that sentence on two grounds, the first being that it is manifestly excessive, and the second being that the learned sentencing judge failed to give sufficient weight to the principle of totality. The circumstances of the offending are revealed above. By way of antecedents the appellant was 44 to 45 years old at the time of the offending, and 49 at the date of sentencing. He had a previous criminal history which included the following:[156](a)1987 – possession of dangerous drugs and a pipe;(b)1990 – wilful exposure – probation for two years; this involved the appellant (then 21) sitting in a vehicle, naked from the waist down, and exposing his penis to three school girls;(c)2001 – wilful exposure – fined but no conviction recorded; this involved the appellant (then 23) masturbating while driving, and being observed from an adjacent car;(d)2016 – indecent treatment of two children under 16, one of which was his daughter (SIS) – two years and six months’ imprisonment in respect of the offence against his daughter, the conviction being declared to be a domestic violence offence; on the other charges, two years’ imprisonment and a declaration that they were a domestic violence offence.[156]AB2 254. The offences for which he was convicted in 2016 occurred over various dates between 25 October 2005 and August 2014. Consequently, the offending against COM occurred within that period of offending. The offences in 2016 involved SIS and one of her friends. There were four occasions where the appellant caused SIS to watch pornographic films, three occasions where he masturbated in front of her, one occasion when he ejaculated in SIS’s presence while sitting in the car, another offence of masturbating in the lounge room and another while masturbating while SIS and her friend were close by. Some of that offending involved the appellant restraining SIS to prevent her from leaving. Under the sentence imposed for the 2016 offences, the parole eligibility date was 28 January 2018, and the fulltime date of the sentence was 27 April 2019. At the time of the sentencing for the offences against COM, the appellant was still in custody. The learned sentencing judge had two victim impact statements, one from COM and the other from MUM.[157] These documents related the psychological, emotional and financial damage caused by the offending conduct. Part of the damage felt by MUM was having to watch COM suffer because of what the appellant did. As for COM, she related her anxiety at being reminded of the appellant, difficulties with concentration, nightmares and being scared of what might occur when the appellant gets out of custody.[157]Exhibit 12 and 13, AB2 276-277.

Ratio Decidendi

Legal Principle Established

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