R v WCD - [2024] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

R v WCD [2024] QCA 120

PARTIES:

R
v
WCD
(appellant)

FILE NO/S:

CA No 102 of 2023
SC No 42 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 11 May 2023 (Clarke DCJ)

DELIVERED ON:

21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2024

JUDGES:

Morrison and Boddice JJA and Callaghan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNT TO MISCARRIAGE – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child and four counts of rape – where the prosecution case turned on the evidence of a child complainant – where the defence argued that the complainant’s evidence was inconsistent – where the appellant claimed a miscarriage had been occasioned by the failure to direct the jury on the use of prior inconsistent statements that were not directly admitted – where the requested direction could have been given – where the requested direction would nevertheless not have had a reasonable possibility of affecting the verdict – whether there was therefore no miscarriage of justice

Evidence Act 1977 (Qld), s 18, s 101(1)

R v Fox (No 2) [2000] 1 Qd R 640; [1999] QCA 140, considered
HCF v The Queen (2023) ALJR 978; [2023] HCA 35, cited
R v SDQ[2022] QCA 91, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

A M Hoare KC for the appellant
S L Dennis for the respondent

SOLICITORS:

RK Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons and orders proposed by Callaghan J.
BODDICE JA: I agree with Callaghan J.
CALLAGHAN J: The appellant was convicted, after a trial, of maintaining a sexual relationship with a child (count one) and four offences of rape (counts two to five). He was sentenced to imprisonment for a period of 13 years.
Mr Hoare KC (who did not appear in the trial) advances the appeal against conviction on a single ground, namely that:
“there was a miscarriage of justice occasioned by a failure to direct the jury as to the use of prior inconsistent statements of a witness that were not distinctly admitted by that witness.”
Prosecution case
The complainant was born in March 2002. For a period between May 2011 and September 2014,[1] she[2] resided with her aunt and the appellant, who had been a couple since about the year 2000.
[1]Appeal Record Book, 121, lines 39-47.
[2]Along with her twin sister and her brother.
The complainant alleged that whilst she resided with the couple the appellant raped her on a regular basis.
This claim may first have been made to her twin sister, who reported a conversation to this effect occurring “a few months after” they moved out of the residence.…

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 WCD

Details

AGLC: R v WCD [2024] QCA 120
Case: [2024] QCA 120
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of R v WCD involves an appeal against a conviction for maintaining a sexual relationship with a child and four counts of rape. The prosecution's case hinged on the evidence of a child complainant. The appellant argued that a miscarriage of justice had occurred due to the failure to direct the jury on the use of prior inconsistent statements that were not directly admitted. The appellant claimed that this omission could have affected the verdict.

The legal issue before the court was whether the particular circumstances of the case amounted to a miscarriage of justice. The court needed to consider whether the failure to direct the jury on the prior inconsistent statements could have had a reasonable possibility of affecting the verdict. The court also had to consider the provisions of the Evidence Act 1977 (Qld), specifically sections 101(1) and 18, which pertain to the admissibility of a witness's previous inconsistent or contradictory statement.

The court found that although the evidence of the statements made to the Department were inconsistent with the complainant’s testimony, they did not go to the offences themselves. The jury could have convicted even if they had accepted the facts stated to the Department as proven evidence. The court concluded that the application of section 101(1) was not decisive in this case. While the distinction between an established inconsistency that goes to credit and one which is evidence of a fact might be critical in other cases, it was not so in this instance. The appellant needed to demonstrate that the direction for which he contended may, as a reasonable possibility, have affected the verdict, which he did not succeed in doing.

The court dismissed the appeal, holding that there was no miscarriage of justice in the proceedings. The evidence in question did not go to the offences themselves, and the appellant failed to show that the omission could have had a reasonable possibility of affecting the verdict. The court found that the jury's verdict was not influenced by the absence of the requested direction.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Section 101(1) of the Evidence Act 1977 (Qld) provides:“101 Witness’s previous statement, if proved, to be evidence of facts stated(1)Where in any proceeding—(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or(b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.” For the purposes of this appeal, I am prepared to proceed on the basis that the evidence of the statements made to the Department were inconsistent with the complainant’s testimony and that she denied or, by asserting absence of memory, at least did not “distinctly admit” that the statement had been made. If, therefore, it is accepted that the provisions of section 18 were complied with then the evidence of the admissions did attract the operation of section 101. It would have been open for the appellant to submit, with validity, that the status with which section 101 imbues this evidence – admissible as evidence of the facts stated – be the subject of a direction to the jury. The appellant’s argument does have some technical merit. It is true, as the respondent submits, that the statements so proven did not go to the offences themselves. The jury could have convicted even whilst accepting that the facts stated to the Department were proven as evidence. That of itself does not foreclose the position adopted by the appellant. The application of s 101(1) can be significant. For example, in a case involving a hostile witness who recants the contents of an earlier proof, it might be necessary to determine whether there is in fact any evidence on the point which is the subject of the contradiction. The technical but potentially important distinction - between an established inconsistency that goes to credit and one which is evidence of a fact - may be critical in those and any number of cases. This was not one of them. To succeed the appellant must demonstrate that the direction for which he contends may, as a reasonable possibility, have affected the verdict.[21][21]R v SDQ [2022] QCA 91 at [72]. It is at once to be noted that the statements in question, even though “arguably inconsistent” with the proposition that the appellant offended as charged, were not decisive of anything. They may well have afforded proof of the fact that the complainant was content with her living arrangements. However, there may also have been reasons for that, depending on the alternatives that were available to her. Another step needed to be taken before this evidence went directly to the issue of whether the alleged events occurred. That step was not taken, and there may have been a good forensic reason for that. As things were left, the contradicted statements provided counsel with a good talking point, and counsel did in fact make of it what she could.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In the result, it is said, the omission has occasioned a miscarriage of justice.Consideration Section 18 of the Evidence Act 1977 (Qld) provides:“18 Proof of previous inconsistent statement of witness(1)If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.(2)However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such a statement.” Section 101(1) of the Evidence Act 1977 (Qld) provides:“101 Witness’s previous statement, if proved, to be evidence of facts stated(1)Where in any proceeding—(a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or(b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated;that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible.” For the purposes of this appeal, I am prepared to proceed on the basis that the evidence of the statements made to the Department were inconsistent with the complainant’s testimony and that she denied or, by asserting absence of memory, at least did not “distinctly admit” that the statement had been made. If, therefore, it is accepted that the provisions of section 18 were complied with then the evidence of the admissions did attract the operation of section 101. It would have been open for the appellant to submit, with validity, that the status with which section 101 imbues this evidence – admissible as evidence of the facts stated – be the subject of a direction to the jury. The appellant’s argument does have some technical merit. It is true, as the respondent submits, that the statements so proven did not go to the offences themselves. The jury could have convicted even whilst accepting that the facts stated to the Department were proven as evidence. That of itself does not foreclose the position adopted by the appellant. The application of s 101(1) can be significant. For example, in a case involving a hostile witness who recants the contents of an earlier proof, it might be necessary to determine whether there is in fact any evidence on the point which is the subject of the contradiction. The technical but potentially important distinction - between an established inconsistency that goes to credit and one which is evidence of a fact - may be critical in those and any number of cases. This was not one of them. To succeed the appellant must demonstrate that the direction for which he contends may, as a reasonable possibility, have affected the verdict.[21][21]R v SDQ [2022] QCA 91 at [72].

CITATION:	R v WCD [2024] QCA 120
PARTIES:	R v WCD (appellant)
FILE NO/S:	CA No 102 of 2023 SC No 42 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 11 May 2023 (Clarke DCJ)
DELIVERED ON:	21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2024
JUDGES:	Morrison and Boddice JJA and Callaghan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNT TO MISCARRIAGE – where the appellant was convicted after a trial of one count of maintaining a sexual relationship with a child and four counts of rape – where the prosecution case turned on the evidence of a child complainant – where the defence argued that the complainant’s evidence was inconsistent – where the appellant claimed a miscarriage had been occasioned by the failure to direct the jury on the use of prior inconsistent statements that were not directly admitted – where the requested direction could have been given – where the requested direction would nevertheless not have had a reasonable possibility of affecting the verdict – whether there was therefore no miscarriage of justice Evidence Act 1977 (Qld), s 18, s 101(1) R v Fox (No 2) [2000] 1 Qd R 640; [1999] QCA 140, considered HCF v The Queen (2023) ALJR 978; [2023] HCA 35, cited R v SDQ[2022] QCA 91, cited Zhou v The Queen [2021] NSWCCA 278, cited
COUNSEL:	A M Hoare KC for the appellant S L Dennis for the respondent
SOLICITORS:	RK Law for the appellant Director of Public Prosecutions (Queensland) for the respondent