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R v HBW

 

[2019] QCA 48

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v HBW [2019] QCA 48

PARTIES:

R
v
HBW
(appellant)

FILE NO/S:

CA No 76 of 2018

DC No 668 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 19 March 2018 (Morzone QC DCJ)

DELIVERED ON:

22 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2018

JUDGES:

Gotterson and McMurdo JJA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – APPEAL DISMISSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – EVIDENCE – where the appellant was convicted on one count of rape of the appellant’s stepdaughter – where the complainant gave evidence by way of two police interviews as well as pre-recorded oral evidence – where the complainant also made preliminary complaint evidence – where the complainant and the complainant’s sister gave evidence of the appellant’s sexual interest in the complainant – where the appellant takes issue with the evidence lead at trial – where the appellant argued on appeal that there was a lengthy delay between the time the alleged offence took place and the first complaint and the complainant was uncertain as to her age at the time of the alleged offence – where the appellant also argued that the sexual interest evidence was equivocal – whether it was open on the evidence for the jury to have been satisfied of the appellant’s guilt beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – APPEAL DISMISSED – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – OTHER OFFENCES – where the appellant was also convicted on one count of recording in breach of privacy – where a photograph was discovered on the family computer of the complainant showering which had been taken through a gap in the bathroom door frame – where the photograph did not have any attribute information – where the appellant argued on appeal that it was not open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt of this offence – where the appellant argued that it was more likely that the photograph was taken after the appellant had ceased living at the house – whether it was open to the jury to have been satisfied beyond reasonable doubt that the appellant had taken the photograph

COUNSEL:

J J Allen QC, with N Edridge, for the appellant

C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    GOTTERSON JA:  At a trial over four days in the District Court at Cairns, the appellant, HBW, was found guilty on 19 March 2018, of two offences.  He had initially been charged on a three count indictment.  One of the counts, Count 2, had been discontinued before the trial began.
  2. [2]
    Count 1 alleged an offence against s 349 of the Criminal Code (Qld).  The allegation was that between 1 June 2010 and 30 September 2012, he raped the female complainant at Manoora and that the offence was a domestic violence offence.
  3. [3]
    Count 3 alleged an offence against s 227A(1) of the Code.  Here, the allegation was that on an unknown date between 1 June 2010 and 26 January 2016 at Manoora, he visually recorded the same female complainant without her consent, in circumstances where a reasonable adult would expect to be afforded privacy and the complainant was in a private place.  This, too, was alleged to have been a domestic violence offence.
  4. [4]
    The appellant was also sentenced on 19 March 2018.  For the Count 1 offence, he was imprisoned for three years and eight months, with parole eligibility after serving one half of the term.  The sentence for Count 3 was six months imprisonment to be served concurrently.
  5. [5]
    On 6 April 2018, the appellant filed a notice of appeal against his convictions on each count.[1]

Circumstances of the alleged offending

  1. [6]
    The complainant was born in September 2004.  Her mother and the appellant commenced a relationship when she was two years old and her elder sister was about seven years old.  The appellant and complainant’s mother married in 2010 and they, together with the complainant and her sister, began living as a family of four in a four bedroom house in Manoora, Cairns.  The appellant and the complainant’s mother subsequently separated in January 2016.
  2. [7]
    The prosecution case was that, on one occasion when the complainant was six to eight years of age, the appellant entered her bedroom at night.  She awoke to find him kneeling beside her bed and touching her.  He rubbed and licked her vagina.  He placed one or two of his fingers in her vagina and moved it or them in and out causing her some pain.  The digital penetration was the basis of the Count 1 offence.
  3. [8]
    The complainant said nothing while these events were occurring.  The appellant stopped and he left the bedroom.  In due course, the complainant got up to go to the toilet.  She saw the appellant in the dining room area.  When he saw her, he said to her: “oh, I am going to be in so much trouble”.  She went to the bathroom and looked at her vaginal area because it was sore.  She saw that it was “a little bit red”.
  4. [9]
    The Count 3 offence was detected in July 2016 after the appellant had left the house.  The complainant and her maternal grandfather were putting some family photographs onto a computer that had been at the house during the appellant’s occupancy of it.  The computer had just been repaired.  The complainant’s mother began looking at other family photographs that had already been stored on the computer.  She noticed a photograph of the complainant naked in the shower at the house.
  5. [10]
    The prosecution case was that that photograph must have been taken by an occupant of the house.  There had been only four of them.  A combination of exclusion of the complainant, her mother and her sister as the taker of the photograph, and of the appellant’s demonstrated sexual interest in the complainant led to an inevitable conclusion that it was he who had taken it.

The evidence at trial

  1. [11]
    The appellant’s ground of appeal against each conviction is that the jury’s verdict was unreasonable.  In light of that, I propose to summarise in some detail the evidence given at trial with particular reference to the evidence on which the appellant relies.
  2. [12]
    The complainant’s evidence: The complainant’s account was given by way of two police interviews, recordings of which were admitted under s 93A of the Evidence Act 1977 (Qld),[2]and oral evidence that was pre-recorded under s 21A of the Evidence Act.[3]
  3. [13]
    Both police interviews took place on 25 January 2016, the first of them at the complainant’s house with Detective Constable T Keenan and the second at the Cairns Police Station with Detective Senior Constable T Dodson.  The complainant’s evidence was pre-recorded on 2 May 2017.  She was 11 years old at the time of the interviews and aged 12 when her evidence was pre-recorded.
  4. [14]
    The first interview occurred shortly after the complainant had made certain disclosures by text to a Lifeline counsellor about her “stepdad”.  She said to Detective Keenan that she had not told anyone “face to face” about it because “I just can’t”.  It was after a fight with her sister that she told her by text.[4]
  5. [15]
    Detective Keenan asked her to write down what she wanted to tell him.  Her written words were: “When I 6-7 years old I woke up one night and my private area was hurting and I saw my step dad.  He then left 5 minutes later.”[5]
  6. [16]
    The complainant said that she was “six or seven.  Probably seven” at the time.  She described what happened as follows:

“I was sleeping and so I woke – I woke up and I was like, “Oh, my God”, and then I started see finally and I saw him and I didn’t know what to do.  I just laid there even though it hurt and so I think he realised um after a while um that I was awake, so he left, and so after I had the courage, um, ‘cause I had to go to the toilet I went up um and I opened my door and I looked out the door and um I saw him right next to the dining table… And he was like “Oh, I’m gonna be in so much trouble”.  He literally yelled “Gonna be in so much trouble”.  And I was like, “What?”  And so um I just ran to the bathroom, ran back and I tried to fall asleep but I literally couldn’t.  And so um I just managed to fall asleep and then I forgot all about it and then since um like a year later the shower thing happened it came back to me and I started getting all sad and like um stuff like that”.[6]

  1. [17]
    The complainant told Detective Keenan that she did not tell her mother about the bedroom incident because she feared that a separation from the appellant would hurt her, her mother and her sister financially.[7]She said that the appellant “stopped touching” her but that he continued to look at her a lot and that that made her uncomfortable.[8]
  2. [18]
    Earlier in the interview, the complainant spoke of the “shower thing”, saying:

“… when I was in the shower … we were home alone, well I was turning the shower on and … I was telling him from outside, the bathroom’s out… so – um, so I was in the shower.  I was telling him about this story … Um, how cats were fighting last night and I could hear them fighting and so um I opened the door to get something, I don’t know what I got, but when I went to get something and [I] saw him right next to the door … And I was like, “What?”  I was so confused.  And so I didn’t even get the thing that I was getting, I don’t know what I got, so I just closed it and had a shower and I was so confused and so, yeah, that happened.”[9]

According to the complainant, the “shower thing” happened when she was “about nine, eight, I don’t know”.[10]

  1. [19]
    Continuing with her account of the “shower incident”, the complainant told Detective Keenan that when she saw the appellant, he was at the door and when she opened it, he sprinted down the hallway.  It made her uncomfortable that “I was going in the shower and he was there and it was a sliding door so you could like see through the crack”.[11]
  2. [20]
    In her interview at the Cairns Police Station, the complainant also told Detective Dodson that the bedroom incident happened when she was “six or seven, probably seven”.[12]She was sleeping in a single bed in her old room next to the bathroom.  She continued:

“[T]hen I – and then I woke up and then my private area started hurting… And so I was like, “Oh, what’s happening?”  And so I started to look clearer, ‘cause my door had a crack open and the hallway light was on and then I saw HBW and I didn’t know what to do.  I just laid there even though it hurt, I didn’t say anything and after a while I think he realised I was awake so he left about five minutes later… And so I went to go to the bathroom.  I - I looked out my door just in case anyone was there… I saw him down the hallway.  I walked um a little way off the hallway and then um he said, “Oh, I’m gonna to be in so much trouble”.  I was like, “What?”  And so I quickly ran to the bathroom, um, went to the toilet, then I ran back into my room and then I literally couldn’t fall asleep, I was so confused.”[13]

  1. [21]
    The complainant told Detective Dodson that she forgot about the bedroom incident until “the shower thing” saying:

“I managed to fall asleep and so I forgot all about that um until I was nine.  I think it was I was nine or eight and then so once we were home alone, my sis – my mum was at work and so my sister was at a friend’s house and so I was getting ready to go my friend Georgia’s house and, um, I was getting in the shower.  I turned the shower on and I was getting undressed and so I went to go out to get something so I put my towel around me.  And um I saw him right next – because it’s a sliding door … I saw him right next to the door and when I opened the door he ran um down the hallway and I was like, “What?”  And so I didn’t even bother to get the thing I was getting… [A]nd I was so confused I didn’t even bother to get it, so I was like “What?”  And so um I just had my shower and then afterwards… my friend came and then I left”.[14]

The complainant placed the shower incident as having occurred before the bathroom was renovated.[15]

  1. [22]
    When asked how she placed the bedroom incident to a time when she was about seven years old, the complainant said:

“I don’t know how I remember it.  It’s because it’s a big thing, like who – I don’t know who would forget that? Like I’m pretty sure … Um, I remember that um because like the next year, when I was like nine I remember the shower thing.  It’s when I started to remember two years later what happened so and I still remember it and since I was like nine or 10 … because of that thing, so I still remember”.[16]

  1. [23]
    When she was asked whether the bedroom incident occurred during a school holiday or festivity, the complainant initially said that it might have been holidays “like a weekend for school”.  Then she said she remembered being “so tired” in the morning.  She continued: “I’m pretty sure, probably a school day and like maybe a holiday, I don’t remember.”[17]
  2. [24]
    The complainant clarified that when she said her “private part” was hurting, she meant her vagina.[18]It was stinging.  The stinging was both inside and outside, but mostly outside.[19]
  3. [25]
    The complainant told Detective Dodson that she usually slept with her underwear on.[20]It was probably off when the appellant was touching her, but she did not remember clearly.[21]
  4. [26]
    Detective Dodson asked the complainant to describe how the appellant was positioned when she woke up.  She said that he was kneeling by the bed with his head near her “private area”.[22]He “was touching it” with his hand and “putting his finger up as well”.[23]  She said:

“He was like rubbing it and um he was putting his finger up and he was licking it as well.”[24]

  1. [27]
    When asked if it was just one finger, the complainant replied “one or two… probably two”.[25]They went “Like inside… Like near the hole.  I don’t know… yeah, two fingers like that”.[26]
  2. [28]
    Detective Dodson asked the complainant how many times the appellant had put his fingers in her.  She responded: “Probably about five times and then other times he was either rubbing it or licking it.  And like I said this happened like five minutes until he left.  He was probably doing it before but I probably woke up when it started hurting”.[27]
  3. [29]
    The complainant again described the pain as stinging inside and outside, mostly “at the top” and outside.[28]When she looked at it in the bathroom, it was “really red… Like around the sides and like the main area”.[29]
  4. [30]
    The complainant also told Detective Dodson about other occasions relied upon by the prosecution as instances of sexual interest of the appellant in the complainant.  She described an incident which occurred four to five months prior to the interview.  She was in the spare room playing an Xbox.  The appellant came into the room and began looking at her.  He was wearing pants.  He lay on a bed with his body turned away from her.  It appeared to her from his arm movements that he began “rubbing his private area”.[30]She explained that she used the term “private area” to describe his penis.  However she did not see his penis.[31]
  5. [31]
    It was not the first time she had seen him rub his private area in her presence.  He had done it before “a couple of times” when they were both in the pool together.  He was wearing board shorts.  He did not expose his penis to her.[32]
  6. [32]
    The complainant related a further incident that she said happened about a week before the interview.  She was using the computer near the lounge room at home.  The appellant was lying on a couch in the lounge room watching television.  She saw him move around.  He was looking at her and “touching himself”.  She walked off.[33]
  7. [33]
    Detective Dodson asked the complainant why she did not tell her mother about the bedroom incident after it happened.  She said that if she had, the appellant and her mother would “get divorced”; he would “go to gaol”; and the other three of them would be “poor” and homeless.[34]
  8. [34]
    As to the complainant’s pre-recorded evidence, the first question and answer in cross examination was:

“You say that when you were aged six or seven or eight, HBW came into your old room and touched you by touching your private area and putting a finger in your body?...  Yeah”[35]

The complainant maintained that the bedroom incident had occurred.  She was then cross examined as follows:

“And, as I understand it, you forgot about this event for several years; is that right?...  Yes.

That you entirely forgot it for two or three years; is that right?...  Well, I, like, didn’t really think of it.

You didn’t mention it to anybody?...  No.

And then is it correct to say that you recollected it when you were about nine, on your account?...  About that time.

Perhaps 10 or nine?...  Probably nine.

All right.  And then you said nothing at all about this to anybody until you were 11; is that right?...  Yes.

And when you were 11, you told your sister?...  Yeah.

In a series of messages to and from your sister?...  Yes.”[36]

  1. [35]
    In relation to the shower incident, the complainant, in her evidence in chief, described seeing the appellant “looking at the direction of where the sliding door was”.  He was near the front of the sliding door… just near the front of where it closes where there’s a little gap”.[37]
  2. [36]
    The complainant was cross examined as to whether her mother might have been angry at her earlier on the day on which she contacted Lifeline.  The complainant did not recall.  She was also questioned about whether her mother threatened to take her phone from her.  Again she did not recall.[38]
  3. [37]
    Preliminary complaint evidence: The prosecution case also relied on preliminary complaint evidence.  That evidence included a description of the bedroom incident in a text that the complainant sent to her sister on 27 December 2015.  The description, which was consistent with the complainant’s subsequent evidence, was:

“Well it was a normal night and I was sleeping (it was my old room) and I suddenly woke up and my private area was hurting.  I could kind of see and I saw it was him and he was putting his fingers inside my private part and licking and I didn’t know what to do so I just laid there even though it hurt.  After a while I think he realised I was awake so he left.  I was so confused and I didn’t know what to do after that.  So I left my room to go to the bathroom.  I peeked my head out and looked in the dining table area and I saw him and he exactly said, “I’m going to get into so much trouble for this!”  And after that, I don’t remember anything else.”[39]

In a text sent four minutes earlier, the complainant had said that “it happened probably when I was 8”.[40]

  1. [38]
    Additional preliminary complaint evidence consisted of a transcript of an online text conversation between the complainant and a Lifeline worker on 22 January 2016.[41]In it, the complainant said that she had been sexually abused by her stepfather.  When asked when that happened she replied: “I was so young.  About 7 or 8.  I forgot all about it.  Until it came back to me when I was 10.  And it still haunts me.”[42]
  2. [39]
    Other evidence of the appellant’s sexual interest in the complainant: The complainant’s sister also testified that about Christmas time when she was 13, the complainant and the appellant were in the pool at home.  She herself was outside the pool.  The complainant was swimming around.[43]The appellant was sitting on a step at the shallow end of the pool.  He had a can of beer in one hand.[44]
  3. [40]
    The top of the half of the appellant was visible to the complainant’s sister.  She saw “his arm making kind of jerking movements in the water”.  It was his right arm.  Although she did not think anything of it at the time, on reflection “it did seem like it was masturbating in the pool”.[45]
  4. [41]
    Count 3 evidence: Detective Acting Senior Sergeant B Karamujic gave evidence of a gap in woodwork that he observed on 2 July 2016 at the top corner of the sliding door to the bathroom at the house.[46]He arranged for photographs to be taken of the door.[47]The shape of the gap was, in his view, consistent with the photograph of the complainant in the shower[48]having been taken by use of a camera through the gap.[49]The complainant’s mother confirmed the presence of the gap.[50]
  5. [42]
    Detective Karamujic also testified that he first went to the house on 25 January 2016.  At that time the bathroom door had a pelmet above it.  By the time he returned in July 2016, the pelmet had been removed.[51]In cross examination, the complainant’s mother said that the pelmet had fallen off when she and her elder daughter were trying to lift the sliding door off its rails in around May 2016 in order to repaint it.  They were “freshening up” the house to sell it.[52]
  6. [43]
    The photograph of the complainant in the shower depicted her holding a pink loofah that belonged to her sister.  The sister said in cross examination that she thought that the complainant may have used it a couple of times and that she had told her not to, “but it wasn’t an issue”.[53]She denied that she had taken the photograph of her sister.[54]
  7. [44]
    As to the computer, the complainant’s mother gave evidence that it was hers.  It had been used by the four occupants of the house.  The appellant’s children, including a son in his late teenage years, may also have used it when visiting.[55]Soon after the appellant and she separated, her computer began to fail.  She had it repaired and a new hard drive was installed in it.[56]
  8. [45]
    As the complainant was assisting her maternal grandfather upload photographs onto the computer, the complainant’s mother noticed some photographs that she had not seen before.  They were not her photographs.  One of them was the photograph the subject of Count 3.[57]She said that bathroom tiles depicted in that photograph had been installed in March or April 2015 as part of a bathroom renovation.[58]
  9. [46]
    In cross examination, the complainant’s mother disagreed that the photograph of her daughter could have been taken after 25 January 2016.[59]She accepted that she had not looked through all of the photographs on the computer.  The first lot that she had seen were photographs of the appellants’ work and she assumed that all of the photographs were his.  They appeared to be mixed up and some had different timelines.[60]
  10. [47]
    The computer technician who repaired the computer also gave evidence in the prosecution case.  In cross examination, he agreed that photographs downloaded from the new hard drive, including the subject photograph of the complainant, did not have any attribute information on them.  He acknowledged that photographs stored on a computer would ordinarily have a date and time stamp and might even show what device took the photograph.  He said that depending on how it is transferred to a new hard drive, attribute information can be lost.  However, that was not a mistake he would have made.  He also acknowledged that depending on how it was transferred from the device to the computer, attribute information might not be retained.  The technician agreed that if photographs were uploaded to the replacement hard drive from a number of devices, it was less likely that the absence of a date and time stamp from them would be due to a defective device than if they were all uploaded from the one device.[61]
  11. [48]
    The appellant’s evidence: The appellant gave evidence at the trial.  He said that he left school when he was 15 years of age and then travelled around Australia, gaining various skills and qualifications.[62]He worked as a structural landscaper, doing work that included fencing, basic balustrading and general garden and maintenance work.[63]He gave evidence that he had difficulty with reading and writing and was not very good with computers.  On the first occasion he had to upload some photographs to an SD stick, the complainant’s mother helped him.  She plugged his mobile phone into the computer.[64]
  12. [49]
    The appellant denied ever masturbating when in the pool with the complainant.  He also denied the allegations on which Count 1 was based.[65]When asked if he remembered ever doing anything inappropriate of a sexual nature in the lounge room, the appellant said: “scratching my chaffing probably.  I’m not really – I don’t – no”.  He denied having any sexual attraction to the complainant or ever having done anything wrong by her.[66]
  13. [50]
    The appellant spoke of work undertaken to fix leaks in the bathroom.[67]He denied ever standing outside the bathroom while the complainant was inside for any improper purpose such as spying on her.[68]He did say:

“I do know I have gone beside that area, because I wanted to know whether there was water coming out of that same area, because it was all freshly down.  I wanted to know, if the girls splash water everywhere, is whether it was going to come back out along the wall…so we could replace – fix it”.[69]

  1. [51]
    The appellant said he knew nothing about the photograph taken of the complainant through a gap in the bathroom door.[70]He denied having had anything to do with the building work around the bathroom sliding door or ever having noticed the gap.[71]
  2. [52]
    As to the allegation made by the complainant’s sister concerning conduct by him in the pool, the appellant said that he had been thinking about it for a long time and all that he could think of was his chaffing, which was work related.  For several years, chaffing had been a daily issue because of sweating at work.  That is why he would sometimes get into the pool.[72]
  3. [53]
    The appellant gave evidence that he had examined the photographs downloaded by police from the family computer.  He had been unable to find any time or date stamps on them.[73]He identified photographs that he had, or might have, taken on various occasions over a period of years, including for work purposes and whilst on holidays.  Some were of subjects or occasions he could identify; some were apparently taken by other individuals; and some photographs were completely unfamiliar to him.  He concluded that there was a mixture of photographs from different years taken in different places and by different people.[74]
  4. [54]
    The appellant gave evidence that the following individuals used the computer: his children, the appellant himself, the complainant’s mother and sister, the complainant and a friend of the complainant’s mother who stayed during 2012 or perhaps 2013 for about four or five weeks and who used the computer for all manner of things.[75]
  5. [55]
    During cross examination, the appellant agreed that most of the photographs were taken by him and most were work-related.  He acknowledged that he was guessing most of the times that he said they were taken.[76]
  6. [56]
    The appellant said that typically he worked seven days a week and only took off public holidays.[77]Of the two of them, he would always be home first because the complainant’s mother always worked late.[78]He said that it was difficult to spend time at night with the complainant’s mother because of her job.[79]
  7. [57]
    The appellant was cross examined as follows:

Would you not check to see if there was a leakage in the bathroom?...I did.  I did check to see if there was a leakage in the bathroom.  That’s correct.

…according to you, you would stand near the door and when the girls were having a shower, to see if it was leaking – or (the complainant)?...I remember one particular time and (the complainant’s mother) was sitting out the front and having a wine, and she said to me – she said, “Is the bathroom leaking?” and I said “No, it’s not.  It’s not leaking at the moment.”

All right?...So I do remember being in that area you’re talking about, yes.

Okay.  And on that or another occasion, you were standing near the door and (the complainant) came out, didn’t she, and as soon as you saw her, you ran up the corridor?...(the complainant) did come out of that room.  I do remember that.  I do remember that.  She had a towel on her.  But, no, I turned away, but I did not run away.

Or you went away, you turned away?...I turned away…

Went away quickly?... and walked off”.[80]

  1. [58]
    In re-examination the appellant said that the gap in the bathroom door looked like poor quality carpentry work.  The timber looked rotten, suggesting that the work had been done long ago.[81]

The grounds of appeal

  1. [59]
    At the hearing of the appeal, the appellant was granted leave to file an amended notice of appeal.  The grounds of appeal as stated in it are:
  1.  Count 1 (Rape) – The verdict of the jury was unreasonable

Particulars:

a) The prosecution relied on the account of the complainant and evidence of sexual interest.

b) The complainant child was aged 11 when a s 93A recording was made.  The complainant said:

That when she was 6 or 7 or 8 the appellant, her stepfather, had raped her;

She forgot about the event for several years until she was aged about 9 or 10;

She first told of the event when 11.

c) The sexual interest evidence was equivocal.

  1.  Count 3 (Recording in breach of privacy) – The verdict of the jury was unreasonable.

Particulars:

a) Some months after the appellant had left home in accordance with bail conditions a photograph of the complainant child showering was discovered on a family computer.

b) The photograph had been taken through an aperture in the bathroom door frame.

c) The aperture was usually behind a pelmet covering the sliding door trace and door frame.

d) The pelmet had been taken down some months after the appellant had left the home in accordance with bail conditions.

Ground 1

  1. [60]
    The appellant’s submissions: The factors that the appellant submits rendered the verdict on Count 1 unreasonable are those set out in the ground itself.  They were not substantially elaborated by the appellant in either written or oral submissions.
  2. [61]
    The respondent’s submissions: The respondent submits that it was open on the evidence for the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.  The factors on which the appellant relies, even if made out, would not have precluded the jury from being so satisfied.  It is significant, the respondent submits, that the jury were given careful directions, including Longman and Robinson directions.  No complaint is made by the appellant in respect of them.
  3. [62]
    Discussion: It is evident from the extracts from the two police interviews and her pre-recorded evidence to which I have referred, that the complainant gave a consistent account of the offending she said had taken place in the bedroom.  Moreover, the account was also consistent with the preliminary complaints that she made to her sister and to the Lifeline worker.  The degree of consistency in detail with regard to how and where the appellant touched her and then penetrated her is noteworthy, in my view.
  4. [63]
    It is true that the appellant was not definite as to her age when the offending occurred.  There was, however, consistency in her statements that it was when she was six, seven or eight years old.  She did not attribute the offending to different years or age in different accounts.
  5. [64]
    The use of the word “forgot” by the complainant was apt to mean that she put the bedroom incident to one side in her mind for several years.  It was the shower incident that revived her memory of it.  That the complainant put the incident to one side was explained by the concern that she had for security of housing and financial wellbeing if her mother and the appellant separated.  That was a not unreasonable explanation for her not having complained about it immediately and for her having put it to one side in her mind.  In any event, the word “forgot” did not imply that the subject of the complaint was a recent invention thought up by the complainant when she was 11 years old.
  6. [65]
    To my mind, to describe the sexual interest evidence as “equivocal” is to understate it.  The complainant’s evidence of two instances where the appellant was looking at her and moving his arm so as to appear to be rubbing his private area was complemented by the evidence of her sister as to similar conduct on the appellant’s part when he was with the complainant in the pool.  There was no evidence that the sisters had colluded.  It was open to reject the appellant’s explanation of discomfort with chaffing as not credible.
  7. [66]
    In summary, there was no significant weakness in the prosecution case.  I am of the clear view that it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt on Count 1.

Ground 2

  1. [67]
    Appellant’s submission: The appellant submits that this Court ought to conclude that, upon an independent review of the evidence, it was not open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt on Count 3.  In written submissions which also were not elaborated in oral submissions, the appellant cited a number of factors which he submitted would have precluded the jury from being so satisfied.
  2. [68]
    They were that the photograph of the complainant was not discovered until months after the appellant had lost access to the computer on which it was found; that other individuals had access to that computer; and that, on the appellant’s evidence, other photographs also on the computer comprised a mixture of photographs that were taken in different years, in different places and by different people.[82]
  3. [69]
    Further, the appellant submits that it was more likely that the photograph in question was taken after the pelmet across the top of the sliding door had been removed.  The removal happened after he had ceased living at the house.[83]
  4. [70]
    Respondent’s submissions: The respondent submits that the evidence of the appellant’s sexual interest in the complainant and the further evidence of his presence at the bathroom door at times when she was showering, were elements of a circumstantial case which strongly suggested that it was he who had taken the photographs.[84]That evidence included the concession by the appellant that on one occasion he was standing by the door while the complainant was using the shower.
  5. [71]
    As to the taking of the photograph, there was no evidence that it could not have been taken with the pelmet in place.  The respondent submits that given the smallness of the gap, it was more likely to have been known to a person who was very familiar with the house.  The photographic exhibits did not assist on that issue.[85]The respondent further submits that the tiling in the photograph indicated that it was taken after the renovations were carried out to the bathroom in March or April 2015.  That did not necessarily place the taking of the photograph to a time after the appellant’s departure from the house.
  6. [72]
    The fact that the photograph was found after the appellant had moved out of the house was for the jury to consider.  However, the respondent further submits it was not an obstacle to their concluding that he took the photograph before he moved out and that it was recovered from the hard drive at the same time as other photographs were recovered from it.[86]
  7. [73]
    Discussion: The corroborated evidence of the sexual interest of the appellant in the complainant together with the evidence from both the complainant and the appellant of his being present at times adjacent to the bathroom door while the complainant was showering pointed strongly towards the appellant as the individual who took the photograph of the complainant while she was in the shower.
  8. [74]
    That evidence was not counterbalanced by other evidence that diminished the likelihood of the appellant having been a photographer.  On the evidence, the photograph must have been taken after April 2015.  The appellant continued to live in the house until January 2016.  The size and location of the gap through which the photograph was apparently taken does suggest that the photographer was someone who knew the house well.  There was no evidence that with the pelmet in place, the photograph could not have been taken.
  9. [75]
    The absence of a time and date stamp on the photograph does not shed any light on the identity of the photographer.  Also, the possibility was open on the technician’s evidence that all of the recovered photographs that lacked a time and date stamp had been taken with, and downloaded from, the same device.  Given that the appellant accepted in cross examination that most of those photographs had been taken by him, the possibility was open that the rest of them had been taken by individuals to whom he had lent the device at times.
  10. [76]
    In summary, the prosecution presented a persuasive circumstantial case that the appellant had taken the photograph.  It was not significantly undermined by other aspects of the evidence relevant to this count.  I conclude that it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.

Disposition

  1. [77]
    As neither ground of appeal has succeeded, this appeal against conviction must be dismissed.

Order

  1. [78]
    I would propose the following order:
    1. Appeal dismissed.
  2. [79]
    McMURDO JA:  I agree with Gotterson JA.
  3. [80]
    BODDICE J:  I agree that it was open to the jury, on a consideration of the evidence as a whole, to be satisfied beyond reasonable doubt of the defendant’s guilt of each count.
  4. [81]
    I agree with the order proposed by Gotterson JA.

Footnotes

[1] AB 1 1-3.

[2] Exhibits 1 and 2, transcripts of which were admitted as Exhibits “MFIA” and “MFIB”.

[3] Exhibit 3.

[4] AB 2 167 l13 – AB 2 168 l17.

[5] Exhibit 4; AB 2 152.

[6] AB 2 170 l57 – AB 2 l71 l18.

[7] AB 2 171 ll20-30.

[8] AB 2 171 ll42-43.

[9] AB 2 168 l57 – AB 2 169 l20.

[10] AB 2 169 ll50-60.

[11] AB 2 169 ll20-35.

[12] AB 2 176 ll25-30.

[13] AB 2 176 l40 – AB 2 177 l10.

[14] AB 2 177 ll10-40.

[15] AB 2 189 ll38-42.

[16] AB 2 192 l45 – AB 2 l93 l10.

[17] AB 2 193 ll20-35.

[18] AB 2 194 ll1-8.

[19] AB 2 194 l32 – AB 2 195 l12.

[20] AB 2 195 ll45-50.

[21] AB 2 196 ll20-30.

[22] AB 2 196 l42 – AB 2 197 l30; AB 2 198 ll25-33.

[23] AB 2 198 ll5-19.

[24] AB 2 199 ll12-13.

[25] Ibid ll47-50.

[26] AB 2 200 ll1-10.

[27] AB 2 200 ll15-20.

[28] Ibid ll30-40.

[29] AB 2 202 ll1-10.

[30] AB 2 203 l18 – AB 2 204 l18.

[31] AB 2 207 ll35-45.

[32] AB 2 208 ll19-46.

[33] AB 2 204 ll19-58.

[34] AB 2 209 ll25-43.

[35] Tr1-17 ll1-5.

[36] Ibid ll24-42.

[37] Tr1-13 l35 – Tr1-14 l3.

[38] Tr1-18 ll9-21.

[39] Exhibit 5; AB 2 155.

[40] Ibid.

[41] Exhibit 6; AB 2 156 – AB 2 157.

[42] AB 2 157.

[43] AB 2 48 ll1-6.

[44] AB 2 50 ll6-16.

[45] AB 2 48 ll4-33.

[46] AB 2 38 ll36-43.

[47] Exhibit 12.

[48] Exhibit 11.

[49] AB 2 40 ll19-27.

[50] AB 2 61 ll13-39.

[51] AB 2 39 ll23-32.

[52] AB 2 65 l40 – AB 2 67 l5.  The complainant’s sister gave evidence to similar effect: AB 2 51 ll9-38.

[53] AB 2 53 l29 – AB 2 54 l9.

[54] AB 2 53 l25.

[55] AB 2 57 l30 – AB 2 58 l4.

[56] AB 2 58 ll6-25.

[57] AB 2 59 ll12 – AB 2 60 l7.

[58] AB 2 60 ll26-40.

[59] AB 2 62 ll40-41.

[60] AB 2 68 ll1-14.

[61] AB 2 71 l40 – AB 2 74 l23.

[62] AB 2 79 ll30-44.

[63] AB 2 80 ll1-3.

[64] AB 2 82 ll19-41.

[65] AB 2 84 ll28-47.

[66] AB 2 85 ll1-5.

[67] AB 2 86 ll10-20.

[68] AB 2 86 ll20-30.

[69] AB 2 86 ll30-35.

[70] AB 2 86 ll42-45.

[71] AB 2 87 ll6-12.

[72] AB 2 88 ll1-15.

[73] AB 2 88 ll20-26.

[74] AB 2 93-115.

[75] AB 2 109 ll20-35.

[76] AB 2 116 l46 – AB 2 117 l36.

[77] AB 2 118 ll27-44.

[78] AB 2 119 ll5-8.

[79] AB 2 122 ll12-13.

[80] AB 2 126 ll15-45.

[81] AB 2 129 ll15-25.

[82] Appellant’s Outline of Submissions (“AOS”) at paragraphs 54, 55.

[83] Ibid paragraph 56.

[84] Respondent’s Outline of Submissions (“ROS”) at paragraph 8.

[85] Ibid paragraph 9.

[86] Ibid.

Close

Editorial Notes

  • Published Case Name:

    R v HBW

  • Shortened Case Name:

    R v HBW

  • MNC:

    [2019] QCA 48

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, McMurdo JA, Boddice J

  • Date:

    22 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC668/17 (No Citation) 19 Mar 2018 Date of Conviction (Morzone QC DCJ).
Appeal Determined (QCA) [2019] QCA 48 22 Mar 2019 Appeal against conviction dismissed: Gotterson and McMurdo JJA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)