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R v FAO

 

[2018] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAO [2018] QCA 73

PARTIES:

R
v
FAO
(appellant)

FILE NO/S:

CA No 172 of 2017

DC No 120 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 20 July 2017 (Horneman-Wren SC DCJ)

DELIVERED ON:

20 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2018

JUDGES:

Holmes CJ and Gotterson and McMurdo JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the appellant appeals against his conviction on the ground that the verdict is unreasonable – where the appellant contends that both his evidence and that of the complainant’s mother was inconsistent with the Crown case as to the time at which the offences occurred – where the appellant contends that physical features of the household made it unlikely that the offences could have occurred in the way the complainant described – where the complainant had previously denied being inappropriately touched when questioned by child safety officers – whether the jury were entitled to accept the complainant’s evidence and be satisfied beyond a reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted of sexual offences against the nine year old daughter of his de facto wife – where the complainant’s police interview and pre-recorded evidence were replayed during jury deliberations – where the trial judge warned the jury against giving the evidence additional weight because it was replayed but did not remind the jury of the defence case – whether his failure to do so resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant  was convicted of sexual offences against the nine year old daughter of his de facto wife – where a doctor gave evidence of examining the complainant in September 2013 – where the Crown prosecutor addressed the jury on the basis that the offences were committed in December 2013 – where the evidence of the medical examination thus became irrelevant to the prosecution case – whether the evidence was prejudicial to the defence case – whether its admission caused a miscarriage of justice

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

R v SCG (2014) 241 A Crim R 508; [2014] QCA 118, cited

COUNSEL:

N V Weston for the appellant

J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. HOLMES CJ:  The appellant was convicted of one count of each of the following offences: assault with intent to commit rape; attempted rape; common assault; deprivation of liberty; and indecent treatment of a child under 16 years; with the aggravating circumstance in each case that the offence was a domestic violence offence.  All the offences were said to have been committed on a single occasion against a nine year old complainant, to whom I will refer as “AB”.  The appellant was in a de facto relationship with AB’s mother.  The offences were particularised as having occurred between 19 August 2013 and 1 January 2014, but at the end of the trial the prosecutor addressed the jury on the basis that they had actually occurred in December 2013.
  2. The appellant appeals the convictions on the grounds that the verdicts are unreasonable; that a miscarriage of justice occurred because the trial judge did not remind the jury of the defence case after AB’s evidence was replayed during their retirement; and that there was a miscarriage of justice because prejudicial and irrelevant evidence concerning a doctor’s examination of the child in September 2013 was received.

Background

  1. There were some matters which were not controversial.  The appellant’s relationship with AB’s mother began in 2008 and lasted about six years.  They were living together in her Ipswich home for most of that period, although in the second half of 2013, he sometimes stayed with his ill grandfather.  AB’s mother had two children, AB, born in September 2004, and a boy who was two years younger.  AB’s mother became pregnant by the appellant with a third child: their daughter was born in March 2014.  The house in which the family lived was a four bedroom house.  When the appellant stayed there he slept with AB’s mother in her bedroom.  The master bedroom, which had an en suite bathroom, was occupied at different times by AB’s uncle (her mother’s brother) and AB’s aunt (her mother’s sister).  That room, in which the offences were alleged to have taken place, was unoccupied in the second half of 2013.

The appellant’s evidence

  1. The appellant gave evidence in his own defence.  It is useful to set out his account first, to give a context for the way in which the evidence of the Crown witnesses emerged, particularly under cross-examination.  The appellant denied ever sexually assaulting AB or exposing himself to her.  He said that in 2012, AB’s mother made him aware that AB’s uncle had claimed the child had made an allegation against him (the appellant), of having “done something” to her.  However, AB had then changed her account to say that it was her uncle who was responsible.
  2. The appellant was aware of three other such allegations.  The first of those was made in about September 2013.  He had been angry with AB and yelled at her; her mother had then informed him that AB had claimed that he had touched her.  At his suggestion, the child was taken to a doctor for examination.  In April 2014, the appellant said, he had smacked AB for bad behaviour; in his presence, AB had told her mother that the appellant had just touched her bottom, which was correct only in the sense that he had smacked it.  About a week later, he had yelled at her for not doing her chores and there had been a complaint on that occasion.  He did not become aware of the allegations which were the basis of the charges against him until he was arrested in February 2015.
  3. In December 2013, the appellant said, he had stayed twice at AB’s mother’s house.  On the first occasion he had looked after the house for a couple of days while AB’s mother travelled with her two children to New South Wales for a wedding.  He stayed overnight with the family on 13 December (a Friday), took them to the airport the following day, and collected them again a few days later; AB’s mother had then dropped him at his grandfather’s house on the way home. (A formal admission was made that AB had flown with her mother to Sydney on 14 December 2013, returning on Tuesday 17 December 2013.)  He had also gone to the house on Christmas Eve.
  4. According to the appellant, in June 2013, the lock on the master bedroom door was removed and placed on AB’s bedroom door, so that it could be locked from the inside; the idea was to give her some privacy from her brother.  In October 2013, AB’s mother had bought a queen-sized bed for the master bedroom.  It was only a couple of inches off the ground; no-one could have crawled under it.  There had previously been no bed in the room since AB’s aunt had vacated it in about April 2013.
  1. In cross-examination, the prosecutor challenged the appellant as to the state of his knowledge about the locking of AB’s room.  The appellant said that he knew it was locked at night because when he tried to wake her for school in the morning it was locked.  He conceded, however, that he could not say from his own knowledge that it was locked every night.  The prosecutor put to him that on a date unknown between 19 August 2013 and 1 January 2014 he had committed the sexual assaults the subject of the charges; the response was a denial.  He did not challenge the appellant’s evidence about what had occurred in December 2013 or put that there had been a sexual assault in that month.

The complainant’s evidence

  1. AB was interviewed by a police officer on 31 July 2014, after her mother had made a complaint of domestic violence against the appellant.  AB said that “sometimes” when he had been drinking, the appellant took her into a room with a lock, and removed her clothes.  She was asked when that had last happened, and said it was on a Thursday, and she knew it was in December, because it was near Christmas.  She missed school the following day. (A formal admission was made that the child had been away from school on both Friday 6 December 2013 and Friday 13 December 2013.)
  2. AB’s account was as follows: she had been sleeping in her bed when the appellant grabbed her and took her into the master bedroom of the house.  He laid her down near the door and removed her clothes, and restrained her by putting his legs on hers and holding her arms.  He tried to make her suck his penis, saying that she should think of it as a lollipop.  At one point the appellant released her arms and she tried then to hide under the bed, but he dragged her out.  AB said she was let up to go to the toilet in the en suite bathroom, but the appellant continued to ask her to suck his penis (which she referred to as his “rude part”).  He told her that she had a choice of either complying or having his penis placed in her bottom.  Holding her down on the toilet, he had tried to make her open her mouth in order to suck his penis, but she held it shut and bit his finger.  He became angry and held her throat until she said that she could not breathe.
  3. AB said that she saw a fluid coming out of the appellant’s penis, and it dripped on both her leg and his.  He used toilet paper to wipe his leg and wrapped more paper around his bitten finger.  Released, AB washed her hands and then ran to the bedroom door and unlocked it.  While she was still trying to open it, the appellant dragged her back into the room.  By this time it was sunrise and her mother was up.  AB dressed, as did the appellant.  She told her mother what had happened.  Her mother said not to tell anyone else, because she wanted to give the appellant a chance, but she put a lock on AB’s bedroom door so that he could not get in.  At the end of that account, AB said that this was the only time the appellant “did it”.
  4. On two occasions, AB gave pre-recorded evidence for use at trial.  The first was on 24 June 2016, when she was 11 years old.  In examination in chief, AB added the detail that the appellant had taken his jeans off before putting his legs on hers.  Under cross-examination she was asked whether the lock had been put on her bedroom door before her ninth birthday, but could not remember.  She agreed that the door was locked from the inside each night.  AB agreed with these propositions put to her: the appellant could be unpleasant when he drank alcohol; when he was staying elsewhere, AB and her brother had more time with their mother; in December 2013, her mother was pregnant and it had been suggested that when the baby was born, the appellant would move permanently into their house; and she had thought, after telling her mother that the appellant had done sexual things to her, that he would not be permitted to stay with them anymore.
  5. Subsequently, the indictment was amended to expand the range of dates within which the offending was alleged to have occurred, with the result that a further pre-recording was ordered.  AB was 12 when she was questioned a second time, on 28 April 2017.  (On this occasion, the digital recording failed, and an audio recording of the questioning was tendered at the trial.) Defence counsel in cross-examination asked her directly whether anything “inappropriate” happened more than once between her and the appellant.  She replied that there were about two other occasions before the incident that she had told police about.  In re-examination, she said that she did not remember what had happened on the other two occasions on which the appellant behaved inappropriately to her, except that it was something similar to the incident that she had described to the police.
  1. AB agreed, when defence counsel put it to her, that she had told her mother that her uncle had touched her “inappropriately”, but she could not remember what he did.  She had seen the appellant apply force with his hand to her mother’s neck, but she did not remember him putting his hand around her own neck.  AB did not accept that on occasions when the appellant had yelled at her for not cleaning up her room, she had falsely claimed to her mother that he had inappropriately touched her.  Nor did she accept the suggestion that he had not touched her inappropriately at any time.  She said that she remembered one time: the incident which she had described to the police.
  2. AB confirmed that she remembered being questioned by some people about whether she had been touched or had to touch anyone in a way she did not like, and answering in the negative.  She could not say why she did that. (An officer of the Department of Child Safety, gave evidence that she had gone to AB’s home in March 2014 and spoken to the child.  AB said words to the effect that she got on well with the appellant and that he was fun and played games with her.  Asked if there were anything she did not like about him, she said that she did not like it when he yelled at her.  She said that she had not been asked to touch anyone and that no one had touched her in a way that she did not like.)

The evidence of AB’s mother

  1. AB’s mother was declared to be a special witness; her evidence was recorded in advance of the trial and played at it.  She began by giving some details of her household at the relevant time.  In September 2013, she had moved the lock from the master bedroom to AB’s room.  AB had a good relationship with the appellant.  The circumstances and details of AB’s complaint in relation to the subject matter of the charges were that she got her mother out of bed and said that the appellant had gone into her room and taken her into the en suite bathroom.  He placed his hand over her mouth and told her to be quiet, and then tried to force her legs open and put his hands between his legs.  She resisted; he pulled his pants down and told her to touch his penis.  He instructed her to put it in her mouth and pretend it was a lollipop.  AB’s mother said that she had confronted the appellant about the allegations, but he denied them.  She informed the police of them after an incident in July 2014 in which the police were called to her home.
  2. Under cross-examination, AB’s mother agreed that she had bought a queen-sized bed for the master bedroom in October 2013, the room having lacked a bed since her sister had moved out in about March.  The bed she purchased was on castors, and it was so low to the ground that no one could get under it.  She agreed that she had previously told the police that she had moved the lock from the master bedroom to AB’s room to give AB privacy from her brother.
  3. AB’s mother agreed that in 2012, she had received a phone call from her brother when she was in New South Wales and returned home because of it.  AB said that her uncle had been touching her.  Later in her evidence, however, AB’s mother said that on the telephone she had asked AB what was going on with the appellant, and AB had said that he was coming into her room and putting his hands between her legs.  However, on her return to Queensland, AB had said first that it was her uncle and then that both of them had done so.  Both men denied the allegations.  AB’s mother agreed that AB had changed her account as to whether the appellant or her uncle had touched her, but, she said, AB had been consistent in saying that it was the appellant who was involved in an incident in December 2013 or January 2014.
  4. AB’s mother agreed that her brother was regularly drunk and would lock himself and AB in his bedroom.  She also agreed that when AB stayed with her aunt, she usually returned rude and disrespectful to the appellant, although after a week or so she would return to being affectionate to him.  AB’s mother denied, when it was put to her, that the appellant had stayed with her in December 2013, prior to driving her and her children to the airport to attend a wedding in New South Wales; she said that she had never taken the children to New South Wales for a wedding.  She conceded that she was a light sleeper.
  5. AB’s mother confirmed that when she made a statement to police she told them only about an incident which AB had reported in late December 2013 or early January 2014, involving attempted oral sex.  She said that when AB made the allegation at the end of 2013 or the beginning of 2014 she confronted the appellant about it, but did not report it to the police.  She had made no allegation to the police until she called them with a complaint of domestic violence on 29 July 2014.  It was put to her that she had in fact on four occasions confronted the appellant with allegations AB had made.  The first was in 2012, after her return from New South Wales, when AB alleged that both her uncle and the appellant had touched her; she agreed with that suggestion.  The second was in September 2013, when the appellant yelled at AB for not cleaning her room, and she made an allegation against him; AB’s mother said she did not remember that occurring.  There were two allegations at the end of April, one involving a threatened smacking of AB; she did not remember that.  On the other hand, it was put to her, she had not raised any allegation with the appellant in December 2013 or January 2014; she did not agree.
  1. In re-examination, AB’s mother said that she had only taken AB for a medical examination once and that was after the child had made her disclosure in relation to the December 2013/January 2014 events, alleging that the appellant had tried to make her perform oral sex on him. (The doctor who had examined AB gave evidence that he had seen her on 7 September 2013.  When he was cross-examined, he confirmed that he found no sign of bruising or injury on her legs, arms, throat, genitalia or anywhere else on her body.)

The narrowing of the Crown case

  1. The prosecutor suggested in his address to the jury that the offences occurred in December 2013 and that the appellant could be mistaken about when he stayed at AB’s mother’s house before taking the family to the airport; it might have been the Thursday night.  He might, as AB said, have been there on the Thursday night whilst she had the following day off school.  It was known that AB had not been at school on Friday 13 December or Friday 6 December.  And, it was suggested to the jury, while a good deal of what the appellant had said might have been accurate, it was not true that he did not commit the offences or that he was not there on the night of  Thursday 12 December.
  2. After addresses, in the absence of the jury, the trial judge discussed this turn of events with counsel.  Counsel for the appellant pointed out that his client had not been cross-examined to suggest that he was wrong about not having been at the house on 12 December; nor was it put that the offences had occurred on that date.  However, after taking instructions, he informed the trial judge that he had instructions not to seek the jury’s discharge.  The trial judge indicated that he proposed to instruct the jury that the Crown prosecutor had confined the Crown case to the offences having occurred in December 2013.  If they accepted the evidence of AB’s mother that the visit to the doctor occurred after the relevant disclosure, it would follow that the disclosure was made before 7 September 2013 (the date of the examination) and they could not then be satisfied beyond reasonable doubt that the offences occurred in December 2013.  Defence counsel said he was content with that direction, and the trial judge put the issue to the jury in those terms.

The unreasonable verdict ground

  1. The appellant made the following points as to why the guilty verdicts were not reasonably open.  Firstly, AB’s mother had given evidence that she took the child to be medically examined only once, after the disclosure of the relevant offending was made to her.  That was not capable of being reconciled with the prosecution case that the offending happened on December 12; the inference which should have been drawn was that there was no disclosure of sexual offending in December 2013.  Secondly, the appellant’s evidence that he was not at AB’s home on the night of December 12 was unchallenged.  AB’s mother’s evidence gave no assistance in that regard; indeed, she denied having travelled to New South Wales with the children for a wedding, although the admission showed at least that she had flown to Sydney with AB on 14 December 2013.  Thirdly, there was no explanation as to how the appellant could have entered AB’s locked room.  Fourthly, AB had denied having been inappropriately touched when child safety officers interviewed her in March 2014.  Fifthly, it was implausible that the appellant could have taken AB from one room to another and sexually assaulted her without her mother’s becoming aware, given that the latter was a light sleeper.  Finally, AB’s evidence that she had hidden under a bed could not be reconciled with the evidence of her mother and the appellant about the lack of space under the bed in the master bedroom.
  2. Given the nature of this case, in which the only direct evidence of the offences was AB’s, the question for this court, essentially, is whether her evidence

“contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force…”

to such an extent that, even allowing for the jury’s advantages, there remains a significant possibility that an innocent person has been convicted.[1]

  1. The prosecution case as it was finally put to the jury was certainly that the offences happened in December 2013, but while Thursday December 12 was proposed as the likely date, that was no more than a suggestion.  The jury could, consistently with what was put to them by the prosecutor and the trial judge’s instructions, have convicted on a satisfaction that an offence was committed in the month of December, whatever view it took of the appellant’s evidence about not being at the house on December 12.
  2. The mother’s evidence was that AB made the critical disclosure in December 2013 and it was then that she took her to be medically examined.  The fact that the only medical examination in fact took place in September 2013 raised two possibilities: that she was wrong about when that disclosure was made and it was in fact in September 2013; or that she was wrong about when she took the child to be examined and that it was not after the critical disclosure.  The second was a perfectly reasonable possibility, since it was uniformly the evidence that there were other complaints made by the child; indeed the appellant himself said that he had suggested that the child be examined in September 2013, after a complaint of touching.  This conflict, arising solely from the mother’s evidence as to what happened when, did not cast any necessary shadow on AB’s account of the offences having occurred in December 2013.
  3. The fact that AB’s room was capable of being locked in December 2013 did not mean that it was invariably locked; and the fact that her mother was a light sleeper may not, in the jury’s minds, have made any very substantial difference to the probability of the sexual assaults occurring.  The fact that the child denied any inappropriate touching when asked about it in March 2014 was not remarkable in a context in which AB was fond of the appellant, he was living with the family and she now had a newly-born sister who was his child.
  4. Two features of AB’s evidence might have given the jury pause.  One was the claim to have hidden under a bed, which, the evidence suggests, could not have occurred.  The other was that she referred to the master bedroom as having a lock and to having unlocked the door of that bedroom in an attempt to escape.  If that were accurate, it would suggest at least that the offending occurred prior to September 2013 (by which time, on the evidence of both her mother and the appellant, the lock had been taken off that room).  Those were, though, inessential matters, and the child was telling her story some months later.  The jury might reasonably have regarded those details as fanciful additions without their necessarily reflecting on the essential credibility of her recall of the assaults.
  5. As McHugh, Gummow and Kirby JJ observed in their joint judgment in MFA v The Queen it is not uncommon in trials for some aspects of the evidence to be less than satisfactory.  Nonetheless,

“[e]xperience suggests that juries, properly instructed on the law … are usually well able to evaluate conflicts and imperfections of evidence.”[2]

The jury were entitled to accept AB’s evidence and to be satisfied beyond reasonable doubt that the appellant was guilty of each count of which he was convicted.

The failure to remind the jury of the defence case

  1. The appellant finished giving evidence at 11.50 am on 19 July 2017 and both counsel addressed the jury, the prosecutor finishing at about 3.00 pm.  The judge began his summing up at 11.15 am the following day, concluding at 12.34 pm, with a very short redirection at 12.42 pm.  At 2.18 pm, the trial judge advised counsel that he had received a note from the jury to the effect that they wanted to see AB’s statement to the police.  His Honour observed that that meant they would see the whole of AB’s evidence.  He explained to the jury that it was important they see and hear, not only what AB had said to the police but what she had said when cross-examined about it, so it was necessary for the tapes of her pre-recorded evidence also to be played.  He warned the jury before the replaying of the evidence commenced that they were not to give it weight simply because it had been repeated.  Defence counsel took no issue with that direction.  He did not seek any further direction or that any other evidence be played to the jury.
  2. As one would expect, the recordings were then played in chronological order: the police interview, the June 2016 pre-recording and the April 2017 pre-recording (the latter in audio form only).  The 2016 pre-recording contained a short examination in chief, while the 2017 examination in chief was limited to formal matters – name, age and so on.  Both recordings, then, were almost entirely cross-examination.  The replaying of the evidence took about one hour and 10 minutes.  The jury then retired and returned with their verdict half an hour later.
  3. The appellant’s ground of appeal was that the trial judge erred in not reminding the jury of the defence case after AB’s evidence had been replayed.  In submissions, however, counsel went further and contended that the appellant’s evidence ought also to have been replayed in full to the jury.  It was argued that from the fact that the jury arrived at their verdicts soon after the evidence was replayed, in circumstances where no countervailing evidence was placed before them, it could be inferred that they gave undue weight to the replayed evidence, having heard it a second time.
  4. Although the jury would have been reminded of some of the matters pertinent to the defence case when AB’s cross-examination was replayed, not all of the relevant matters would have been raised; for example, the appellant’s understanding that AB’s door was locked at all relevant times and that he did not accept that he was at the house on 12 December.  It was 24 hours since he had given evidence and the defence evidence itself was not before the jury.  It contained the appellant’s sworn denial of offending and his responses under cross-examination, which would have helped to jog the jury’s memory as to his presentation in the witness box the day previously.  Defence counsel at trial had not sought any different course of action, but there was no forensic advantage in not having the appellant’s evidence before the jury.
  5. Counsel for the appellant referred to R v SCG.[3]  In that case the trial judge had not given any direction about not giving the replayed evidence undue weight, nor had he given any reminder of the appellant’s evidence.  Morrison JA, with whom the other members of the Court agreed, reviewed authorities on cases where a complainant’s evidence was replayed, before noting that none laid down “immutable standards”.  The overriding consideration, his Honour observed, was fairness and balance: the risk to be guarded against was that undue weight would be given to the replayed evidence where there was no warning or reminder given about competing evidence.[4]
  6. This case, of course, differs from SCG, and the authorities referred to therein, because the trial judge did give a warning that the jury should not attach greater weight to the evidence having heard it again.  That only leaves the issue of whether he should also have reminded the jury of the appellant’s evidence or had it replayed in full.  I would be disinclined to accept that defence counsel’s failure to seek either course was anything other than a reasonable forensic choice.  The jury had heard the appellant’s evidence the preceding day.  There was nothing complicated about it.  His case had been put extensively to AB in the cross-examination which the jury saw or heard, and she had not always been able to answer in any very compelling way.  Defence counsel could quite reasonably, in my view, have weighed up the advantages and disadvantages of leaving her cross-examination as the last thing in the jury’s consciousness and decided in favour of doing so.
  7. The fact that the jury convicted relatively quickly does not lead to any necessary inference that it was as a result of the jury’s having seen AB’s evidence again and in isolation.  It is equally possible that there was some point in the police interview (which was all they had requested to see again) about which they were uncertain; for example, as to when she said the incident happened.  While it might have been preferable to give the jury a brief résumé of the defence points (I do not think there was any occasion to replay the entirety of the appellant’s evidence), I do not consider that any miscarriage of justice is shown as having resulted from the failure to do so.

The admission of evidence of the medical examination

  1. The Crown called the doctor who had examined AB on 7 September 2013 and confirmed he had done so, without eliciting any further detail.  In cross-examination, the absence of any sign of bruising or injury on the child was established.  The appellant’s submission was that because the Crown had changed the particulars by confining the case to offences committed in December 2013, the evidence of the medical examination was irrelevant to the prosecution case.  It was suggested that the jury thereby had evidence put to them suggesting some unknown sexual offending at a time irrelevant to the charge.  The prosecution would not have led that evidence if it had run its case according to the particulars ultimately relied on; it was not probative of anything in the prosecution case; and it was, potentially, highly prejudicial.
  2. In my view, the appellant is quite correct to this extent: the evidence of the examination in September 2013 was irrelevant to the Crown case as left to the jury.  But that is not to say that it was irrelevant or in any way prejudicial to the defence case; quite the contrary.  The appellant’s case theory was that AB had a pattern of making spurious complaints in response to attempts to discipline her; the appellant had consistently denied those complaints; so confident was he of his innocence, that he suggested her examination by a doctor.  That case was advanced by the evidence that the child was indeed examined, without any sign of sexual assault being detected.  The information that the child had been examined in September carried the additional advantage of raising a question about whether the offences could have been committed in December 2013; which in the event, given the trial judge’s direction that the jury had to be satisfied of that timing, created, from the appellant’s perspective, a very favourable set of parameters for the jury’s considerations.  The admission of the evidence did not cause any miscarriage of justice.

Order

  1. I would dismiss the appeal against conviction.
  2. GOTTERSON JA:  I agree with the order proposed by Holmes CJ and with the reasons given by her Honour.
  3. McMURDO JA:  I agree with Holmes CJ.

Footnotes

[1] M v The Queen (1994) 181 CLR 493 at 487.

[2] (2002) 213 CLR 606 at 624.

[3] [2014] QCA 118.

[4] R v SCG [2014] QCA 118 at [35].

Editorial Notes

  • Published Case Name:

    R v FAO

  • Shortened Case Name:

    R v FAO

  • MNC:

    [2018] QCA 73

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Gotterson JA, McMurdo JA

  • Date:

    20 Apr 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC120/16 (No Citation) 20 Jul 2017 Date of Conviction (Horneman-Wren SC DCJ).
Appeal Determined (QCA) [2018] QCA 73 20 Apr 2018 Appeal against conviction dismissed: Holmes CJ and Gotterson and McMurdo JJA.

Appeal Status

{solid} Appeal Determined (QCA)