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R v Adan

 

[2013] QCA 177

 

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2013

JUDGES:

Holmes and Fraser JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of torture, two counts of deprivation of liberty, three counts of assault occasioning bodily harm while armed and one count of assault occasioning bodily harm against a six year old child in her care – where the appellant appeals those convictions on the ground that the verdicts were unreasonable – where the child's allegations were supported by the physical evidence of injuries on him, the appellant’s admissions as to those injuries and their likely source and the evidence of his sister – where the appellant relies on what is said to be confusion in the child's account, inconsistencies between his version and that of his sister and lies told by his mother about whose care the boy was in to argue that the jury should have had a doubt as to her guilt – whether there was any significant confusion in the child's evidence – whether the jury could properly resolve any inconsistencies in favour of accepting his evidence – whether lies told by his mother necessarily led to a doubt about his evidence – whether on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

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

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

COUNSEL:

M J Byrne QC for the appellant
V A Loury for the respondent

SOLICITORS:

Seth Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] HOLMES JA:  The appellant was convicted by a jury of one count of torture, two counts of deprivation of liberty, three counts of assault occasioning bodily harm while armed and one count of assault occasioning bodily harm.  She appeals those convictions on the ground that the verdicts were unreasonable.

The Crown case

[2] All of the offences concerned a child, M, who at the relevant time was six years old.  He gave evidence, as did his eight year old sister, B.  The appellant was a friend of the children’s mother, Ms A.  There was some conflict in the evidence as to whether the children and their mother stayed at times at the appellant’s house or whether, as Ms A claimed, the children merely spent a weekend with the appellant.  According to Ms A, when the children went to the appellant’s house at the beginning of that weekend, M had only a small mark on his face, which he said was the result of a fall at school.  When the boy returned on Sunday evening, she saw that he had four marks on his face, one on a leg, one on his side and one in his groin.

[3] On 20 August 2010, the children’s father, who had been working in Rockhampton, had returned to Brisbane and visited M at his school.  He saw the marks on the child.  The result was that the police were called and interviewed M and B, and on the same day spoke to their mother, Ms A.

[4] In his interview, M said that he, his mother and his three sisters lived with the appellant.  “Yesterday at last night”, the appellant had instructed his sister, B, to make a knife hot and to hold the heated knife to his face; the girl did so (count 3, assault occasioning bodily harm while armed).  The appellant had burned him on the back (count 4, assault occasioning bodily harm while armed).  Altogether, on the preceding night, B and the appellant had burned him three times on his face, and the appellant had burned him once on his back.  The burns had been inflicted outside, in the back yard.  To stop him moving, the appellant had put sticky-tape on his mouth and held his arms and legs (count 2 on the indictment, a charge of unlawful deprivation of liberty).  He was lying down on the stairs when that happened.  His mother was in Perth at the time.

[5] M also described another occasion when his mother was in Perth and he had been naughty, hitting his sisters.  The appellant had used a match to burn his hand and legs (count 5, unlawful assault occasioning bodily harm while armed).  On a different occasion, M said, the appellant had tied his hands and legs and put him in her garage, again covering his mouth with sticky-tape and this time placing a scarf over his eyes (count 6, deprivation of liberty).  The tying of his legs had left a mark on one ankle (count 7, assault occasioning bodily harm).  B had assisted the appellant to restrain him and tie him up.  There was a bed in the garage which had been moved in front of the door.

[6] The incidents which underlay counts 2-7 were relied on as evidence of torture (count 1).  M also spoke of some other examples of abuse.  The appellant had threatened him that she would dig a hole and put him under the ground and that she was going to take him to “the lizard”.  She had put him in the garage “lots of times”.  On one occasion, his mother had helped the appellant and his sister lock him up in the garage.  The appellant had often hit him and his sister with a belt for not doing homework.

[7] After he was interviewed by police, M was examined by a doctor, who found various signs of injury on his body.  The appellant made the following admissions at trial about those injuries and their causes –

-An injury to his left cheek was caused by the application of a heated blade.

-Injuries to his mid back region and above his left buttock were caused by the application of a heated blade.

-Circular injuries to his right hand were caused by the application of a heated match or matches.

-A linear injury to his right hand might have been caused by the application of a heated object or could have been an abrasion or laceration.

-Circular injuries to his upper thighs were caused by the application of a heated match or matches.

-An injury to his left ankle was caused by the application of force from a ligature.

-An injury at the junction at the base of his penis and scrotum was caused by an incision or chemical or thermal force applied with a straight edge using an implement.

-Injuries to his right and left buttock were caused by the application of a heated blade.

It was also admitted that none of the injuries was consistent with a scald burn from hot water or a fall onto gravel.

[8] In her interview, B was asked what she knew about the burn on her brother’s face.  She said that the appellant had grabbed her brother’s hands and feet, tied them up and then burnt him on the face and on the back and stomach.  She had also locked him in the garage and tried to scare him by telling him there was a giant lizard coming to eat him.  The appellant mistreated her brother when he wet the bed.  B added that the appellant had burned her brother beneath the belly-button.  She had tied the boy’s feet and hands together and put sticky-tape on his mouth, nose, ears and eyes.  B also claimed that the appellant had restrained her brother with fake hand-cuffs, and that she tied their two year old sister’s hands with a rope.  The appellant had a long stick used for cooking with which she smacked M.  Sometimes she sat or jumped on M.  Because she was so heavy, when she sat on him, B said, she “breaks his back”.

[9] B said that she and her brother had been sleeping at the appellant’s house for a month.  Her mother had said “we’re going to sleep over for one month or something, the whole year or something”.  Her mother knew what had happened to M, because she, B, had heard the appellant telling her about throwing the boy in the garage and burning him.  B said that her mother had, on the way to her interview, told her to tell the police that her father and brother were lying.  B denied that she had ever herself hurt her brother.

[10] When B was asked where the appellant obtained the rope with which she had tied M, B said she did not know but that the appellant told her to “buy ropes every single day”.  There was a “scary place” under the house, opened by removing a floor square, into which the appellant put her brother.  It was inhabited by rats and snakes.  B also gave an account of some device which the appellant owned that made a deafening noise.  She had an ear-piece which prevented her from being deafened.  When the children touched whatever the device was, they were smacked.

[11] After the children were interviewed, police undertook a search of the appellant’s house.  They seized some kitchen knives and a number of scarves, one of which was found in a shed at the rear of the appellant’s property.  A mattress was also found in the shed.  No ropes, matches or sticky-tape were discovered in the house.  There was a void under the house accessible by a gate at its side, but there was no area in the house itself which gave access to such a space.

[12] After the search of the appellant’s house, she was informed that M had made the allegations against her.  In answer to questioning, she said that sometimes Ms A and her children stayed over at the appellant’s house; once or twice a week.  Two weeks previously, Ms A had been away for a week and she, the appellant, had had to look after her children.  M did not have any injuries when he came to the house.  The appellant was asked if she knew anything about the injuries on his face and back.  She said that one morning she told him to get dressed and have a shower, and he had burned himself.  That had happened on Friday 6 August.  The following day, they went to a party at the local school and he told her that he had fallen down and hurt his face.  She knew nothing of the marks on his hand and ankle.  The appellant denied burning the boy or tying him up.

[13] Both children gave evidence at a pre-recorded hearing in November 2011.  M confirmed that he had stayed with his mother and three sisters at the appellant’s house.  He identified a photograph of the bedroom in which they all slept and another photograph of the garage in which he said the appellant had put him.  He also identified photographs of the various injuries he had sustained.  He was crossexamined about when he had lived at the appellant’s house and said that it was in the middle of the previous year.  His mother was away for three weeks; she had told him she was going to Perth.  He rejected suggestions that he had not been tied up, had sticky-tape put on his mouth or been put in the shed.  However, he replied “Yes” when he was asked if he agreed with the suggestion that the appellant had not burned him with anything.  Whether he understood the question was not clear.

[14] B said that she and her mother, brother and sisters had lived with the appellant in the previous year.  She, too, identified photographs of the house, the garage and her brother’s injuries.  She agreed that her mother had gone to Perth for about four weeks while they were living with the appellant.  Before that, they had spent about four weeks at the appellant’s house and after her mother’s return, they remained there for another three weeks.  She did not agree with suggestions put to her that the appellant had not burned M, put him in a shed, tied him up or put sticky-tape on his mouth.

[15] In June 2012, there was a change in the appellant’s representation and an application was made to cross-examine the children at a further hearing in order to put to them a positive case that their mother, Ms A, was the cause of M’s injuries.  The application was allowed and a further hearing took place on 16 August 2012.  It was put to M that, in the week of the Exhibition in 2010, his mother had burned his face.  He denied that.  He agreed that the appellant had taken him to the Exhibition on the Saturday, but denied suggestions put to him that over the following days his mother had burned his back, tied him up and taken him to the shed.  B similarly denied suggestions that Ms A had burned her brother or taken him to the shed.

[16] In her evidence, Ms A gave the account already referred to, of M’s returning with marks on his body from a weekend with the appellant.  She said that she did not herself stay at the appellant’s house.  On the Monday morning, she spoke to the appellant about the injuries and the latter said that she had done nothing wrong.  That afternoon, she collected her daughter from school and then went to her son’s school.  She saw police officers and her husband and was instructed to go with her daughter to the police station.  The appellant had picked up Ms A’s two younger children from child care.  Ms A told her that the police had taken M and B to the police station.  In May 2012, the appellant had telephoned her and asked her to inform her solicitor that she, Ms A, had caused the injuries to M.

[17] In cross-examination, Ms A said that the weekend in question was the first time she had left the children with the appellant.  She added to her evidence-in-chief that she had seen the appellant in the street a couple of weeks after the police involvement and asked her what had happened.  The appellant had said that she had not meant to “do this”.  Ms A agreed that in her police statement she had said that it was the weekend before 20 August 2010 that the appellant had taken her children to her house, although she was uncertain as to when it was in giving her evidence.  She agreed also that she had told a child safety officer at the police station that M’s burn injuries were caused by hot water at her house and that an injury on his face had been aggravated by a fall at the appellant’s house.  She said that she made those claims because she was afraid that she would be sent to gaol.

[18] Ms A’s children were taken from her; in her later dealings with child safety officers, she agreed, she told one of them that she had been unable to act because her children had not told her about the abuse of M.  She accepted that the appellant had taken the children to the Exhibition on a Saturday.  Ms A admitted that in June 2012 she had told the police that she used to stay at the appellant’s house at weekends with her children.

The defence case

[19] The appellant gave evidence that in 2010, she allowed Ms A to stay at her house because of problems she was having with her husband and in coping with her children.  There were two bedrooms, one of which was occupied by the appellant and her family and the other by Ms A and her children.  Sometimes, the appellant’s ex-husband, Mr Farah, would stay with them.  There were a few days on which Ms A was away; she had told her children that she was going to Perth.  She returned on 10 August 2010.  On 12 August, the appellant had collected the children from school.  There was, at that time, no injury on M’s face.

[20] The following night, the appellant heard Ms A screaming and yelling, but she did not interfere.  The next morning she saw the injury to M’s face.  She asked him how it was sustained and he said that his mother had done it.  On Saturday 14 August, she took M, B and her own children to the Exhibition.  A photograph was tendered showing them there, with a mark apparent on M’s face.  On Sunday night, the appellant once again heard Ms A screaming and yelling at the boy.  The next day, Monday 16 August, she saw that M was not getting ready for school and asked him why not.  He showed her marks on his back and told her that he was in pain.  She drove the children to school and asked M what had happened, but he did not respond.  When she came back to her house, she questioned Ms A, who said that the boy had urinated in his bed and, having a shower, had burned himself with the hot water.

[21] The children’s father had arrived on 20 August and wanted to know where his children were.  The appellant directed him to their schools.  That afternoon, Ms A telephoned her as she, Ms A, was walking to the police station with B.  She told the appellant that the police would want to talk to her, and that she had already told them that M had been burned by hot water and had injured his face falling down.  She asked the appellant to give the same response if the police spoke to her about the matter.  The appellant said that she did as Ms A asked, because she was afraid of the police and did not want to be involved.  That evening, the police had arrested her and she was released from the watch-house in the early hours of the morning.  The next day, Ms A came to her house and looked around.  They walked together to Ms A’s residence where Ms A took a knife from her handbag and threw it on the roof.

[22] In cross-examination, the appellant said that Ms A was away from her house for only three days, and during that period Mr Farah stayed with her.  She agreed that she had told the police that Ms A was away for a week, but that was a lie, as was her explanation of M’s injuries.  Although her own children were removed from her, and the police were accusing her of injuring M, she did not tell them that Ms A was responsible.  She said that she had decided in 2012 to tell her solicitors that Ms A was responsible because she was tired of being in court and wanted her children back.

[23] Mr Farah, the appellant’s ex-husband, gave evidence.  He said that he spent a good deal of time at the appellant’s house.  He met Ms A in July or August 2010 when she moved into the appellant’s house with her children.  He recalled Ms A leaving the house and returning on 10 August 2010; he heard she had gone to Perth.  Under cross-examination, he conceded that she might have gone away more than once.  Mr Farah remembered lending the appellant his car on a Saturday morning so that she could take the children to the Exhibition.  He recalled seeing M with marks on his face on that day.  B told him that the boy had fallen down.  On 20 August, Mr Farah went to the appellant’s house to retrieve his children and stayed there that night.  The following day, Ms A visited the house.  She was looking around the rooms as if she had left something behind, and left the house with the appellant.

The appellant’s submissions on the appeal

[24] The appellant submitted that confusion in M’s account to the police, inconsistencies between his version and that of his sister, B, and the lies of Ms A, particularly about the fundamental issue of whose care the children were in when the injuries were inflicted, should, in combination, have caused the jury a reasonable doubt about her guilt.

[25] Ms A’s claim that she did not live with the appellant was inconsistent with what her children said and was plainly a lie.  The appellant’s evidence was that she saw the injury to M’s face on 13 August 2010.  Mr Farah had confirmed Ms A returned after three or four days away on 10 August.  It was evident that Ms A had been in the house when the child was injured.  While Ms A’s account to police differed from the appellant’s, in that she said she saw the injuries to M when the child was returned to her, her identification of the relevant time as the weekend before 20 August (when she was interviewed) accorded with the appellant’s timing.  On Ms A’s own account, then, for a week she had not complained to anyone in authority about M’s injuries or taken him to a medical practitioner; in contrast with the reaction of the children’s father, who had taken action immediately he saw M’s injuries.

[26] Ms A had, on her own admission, lied to a child safety officer about her son’s having been burned by hot water, which was consistent with the appellant’s evidence that Ms A told her she should also give that response.  In giving evidence, Ms A said that M had told her he had injured his face falling down at school; the same explanation that, according to the appellant, Ms A asked her to give.  Ms A’s asking the appellant to pick up her younger children from child care on the day the police became involved was not consistent with any belief that the appellant had inflicted the injuries.

[27] There were reasons for doubting the reliability of M’s account.  He claimed to have been injured “yesterday at last night”, which did not accord with any of the adult evidence.  He had given different descriptions of where he was when the burn injuries were inflicted with the knife: on a stairway or out in the yard.  He asserted that both the appellant and his sister had burned him with the knife.  He had claimed that his mother had assisted the appellant and B in locking him in the garage and that his sister had helped in injuring him.  Both his sister and mother denied doing anything of the sort.  He had also made the fanciful claim that the appellant would dig a hole and put him under the ground.

[28] B’s account contained improbabilities: that she had been told to “buy ropes every single day”; that the appellant had some sort of ear device; that the appellant had used handcuffs, tied her baby sister up and sat on M so as to break his back; and that the house had some kind of trap door through which M was lowered.

Conclusions

[29] The appellant’s argument assumes that if the jury regarded Ms A as untruthful and, in particular, rejected her claim that she and her children did not live with the appellant, they ought then to have doubted the evidence of M and B that the appellant (rather than the mother) was the author of M’s injuries.  It is not the case, however, that the jury had to believe Ms A in order to convict.  The fact that she was almost certainly not truthful in aspects of her evidence was explicable by a desire to distance herself from any moral responsibility for the harm to her son.  She may very well have been involved in one incident of locking him in the garage.  At the very least, she had left M, B and their younger siblings in the care of the appellant, a 19 year old girl who already had two children of her own to look after.

[30] The point made for the appellant, that Ms A, on any view, was aware of M’s injuries and did nothing about them, itself provides some explanation of why she might not have been frank with child safety officials.  It is not surprising that she would not be forthcoming about having exposed the children to harm by leaving them with the appellant, and then having done nothing about the situation when harm became apparent.  The jury might well have regarded her as an entirely unreliable witness, with a variety of possible motives for her untruthfulness, but it did not mean that they had to reject what the two children said.

[31] The matters identified in relation to M’s interview do not seem to me to cast any real doubt on his credibility.  As might be expected from a six year old, what he said in his interview about when and where incidents happened was not always clear.  Some of the claims of “confusion” in his account are not entirely fair: his reference to the appellant digging a hole and putting him in it seems in context to have been the recounting of a threat, not something that had happened.  There was every reason for the jury to resolve in his favour any conflict between his evidence and that of his sister’s and his mother’s about their involvement in his mistreatment.  For completeness, I should say that I have watched the video recordings of M’s interview and trial evidence.  There is nothing in his demeanour which would raise concerns about his reliability.

[32] More importantly, the substantial allegations M made were corroborated by the physical evidence of injuries on him and by the appellant’s admissions, both about the appearance of the injuries and their likely sources.  He was consistent in alleging that the appellant had inflicted the injuries on him; he maintained that position in his interview and under two sets of cross-examination.  He was supported in it by his sister, who went through a similar process of interview and cross-examination.  B’s account contained elements of exaggeration, but they were not such as to render her evidence about the appellant as the source of M’s injuries incapable of belief.  Both children said their mother was away at the time M was harmed; as they believed, in Perth.  It may be noted, too, that there was some support for their evidence in the version the appellant originally gave police, which was that M had sustained the injuries to his face and back while she was caring for them in their mother’s absence.

[33] I am unconvinced that there was any reason for the jury to reject M’s account; it was inherently plausible, and it was supported by other evidence.  It is not difficult to understand why the jury may not have found the appellant’s own evidence compelling, given her admitted lies to authorities and the changes in her account.  On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[1]  The contention that the verdicts were unreasonable must be rejected; the appeal against conviction should be dismissed.

[34] FRASER JA: I agree with the reasons for judgment of Holmes JA and the order proposed by her Honour.

[35] BODDICE J: I have read the comprehensive reasons for judgment of Holmes JA.  I agree with those reasons and the order that the appeal against conviction be dismissed.

 

Footnotes

[1] M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 615.

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Editorial Notes

  • Published Case Name:

    R v Adan

  • Shortened Case Name:

    R v Adan

  • MNC:

    [2013] QCA 177

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Fraser JA, Boddice J

  • Date:

    12 Jul 2013

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2013] QCA 177 12 Jul 2013 -

Appeal Status

{solid} Appeal Determined (QCA)