R v TU
[2009] QCA 386
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- Unreported Judgment
- Appeal Determined (QCA)
- R v TU[2009] QCA 386
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R v TU[2009] QCA 386
R v TU[2009] QCA 386
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal against Conviction |
ORIGINATING COURT: | |
DELIVERED ON: | 15 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 December 2009 |
JUDGES: | Holmes JA, and Atkinson and Daubney JJ |
ORDER: | The appeal against conviction is dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant was found guilty of one count of indecent treatment of a child under 16, under 12, whilst under care and one count of indecent treatment of a child under 16 – where appellant argued that the verdicts of guilty on counts 1 and 3 on the indictment were unreasonable and inconsistent with his acquittal on count 2 – whether the verdicts were unreasonable or insupportable having regard to the evidence Criminal Code 1899 (Qld), s 668E MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered |
COUNSEL: | C Reid for the appellant |
SOLICITORS: | Legal Aid Queensland for the appellant |
[1] HOLMES JA: I agree with the reasons of Atkinson J and with the order her Honour proposes.
[2] ATKINSON J: The appellant was tried on the following counts:
Count 1: indecent treatment of a child under 16, under 12, whilst under care;
Count 2: indecent treatment of a child under 16; and
Count 3: indecent treatment of a child under 16.
[3] The appellant was found guilty on 30 July 2009 on counts 1 and 3 and sentenced to 15 months imprisonment with 13 March 2010 fixed as his parole eligibility date. He was found not guilty on count 2. The appellant complains that the verdicts of guilty on counts 1 and 3 are unreasonable and also inconsistent with his acquittal on count 2.
Unreasonable convictions
[4] This ground of appeal relies on s 668E of the Criminal Code 1899 (Qld) which provides, inter alia:
“668EDetermination of appeal in ordinary cases
(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(1A)However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
[5] As Mackenzie AJA observed in R v PAH [2008] QCA 265 at [29]:
“The question which the court must ask itself is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In most cases, a doubt experienced by an appellate court will be a doubt the jury ought also to have experienced. Where a jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt experienced by the appellate court, the court may conclude that no miscarriage of justice occurred. Where the evidence lacks credibility for reasons which are not explicable by the manner in which the evidence was given, the reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.”
[6] The determination of whether or not on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1 and 3 requires a consideration of the evidence led by the prosecution in this case.
[7] The events the subject of the first count were alleged to have happened in June 2003 when the complainant, who was born on 4 September 1995, was seven years old and the appellant 17 years old. The events the subject of counts 2 and 3 were alleged to have occurred between 2004 and 2005 when she was between eight and ten years of age and the appellant between 17 and 19 years old. The evidence given by the complainant was a statement made by her to the police which was video recorded on 18 May 2006 when she was ten years old and a video recording of her evidence before a judge on which she was cross-examined when she was 13 years old. Evidence was also given by the appellant’s father and a number of persons to whom the complainant eventually made complaints.
[8] During her police interview the complainant spoke first about her nervousness and her reluctance to talk about the events and asked if her youth worker could be present. Her youth worker was unable to be present as she was likely to be a witness herself. The complainant said that she had not thought about it for some time and was reluctant to think about it. She said she had put the abuse behind her.
[9] The complainant then talked about the incident which is the subject of count 1. She said that her mother had gone to a car rally and the appellant, her uncle, was looking after both her younger brother and her. She was then seven years old. Her evidence was
“The night she went to the rally, we all got sent to our room and when I was asleep, he came in my room, he took off my blanket and took off my pants and … licked my wee wee.”
[10] She said that she kicked the appellant when this happened. She said she kicked him “in the rude part”. She had been asleep when it happened. She said that was the first time that such a thing had happened. The complainant felt his drool on her “like slobber…like one of the dogs.”
[11] Her evidence as to the second occasion was when he told her to close her eyes and spread her legs apart and she thought he was going to put shoes on her feet but he licked her again on her vagina.
[12] She also gave evidence of a third occasion when he made her eat a condom while “the gunk was in it”. She said that was the last occasion of the appellant’s offending.
[13] When she went through the narrative about what had occurred again she said that the appellant told her there was a surprise and to close her eyes and spread her legs and he told her to open her mouth and she thought she was getting chocolate. He went to his toilet and came out and said “open your mouth and shut your legs” and had a condom in his hand. He told her to open her mouth and put it in. She said it went into her mouth and she threw it up and she kicked him. She said she threw up in the car, whilst she was sitting on the boot. The car was his father’s car, which was brown, which was in the garage of the yellow house. She then said that the occasion when he licked her on her vagina was a different occasion.
[14] Examination and cross-examination of the complaint which was video taped and presented at the trial took place on 1 May 2009. By that time she was 13 years old. She was asked some more questions about count 3. She said at the time she was living in a yellow house. She was upstairs playing with her brothers and sisters and just given her baby sister a bottle when the appellant called her downstairs and locked her in the car and went off to the bathroom. She was sitting in the passenger side in the back seat of the car which was a brown car which belonged to the appellant’s father. He unlocked the car, wound down the window and passed her in the condom and asked her to chew it which she did because she was too young to know what it was. After that she threw it up and got out of the passenger side of the back seat, ran upstairs, locked the back and front door.
[15] She was cross-examined as to why she had not previously told the police that she had been locked in a motor vehicle. She was cross-examined about the fact on the first occasion she said the incident had happened on the boot of the car. She said she was really young and scared then. She gave a detailed description of an enclosed area under the house. She denied that she had kicked him on that occasion as she had said in her police interview. It was put to her that she was not telling the truth about this incident and that there was no incident when she was asked to chew on a condom. She adamantly denied lying.
[16] The appellant’s father was called to give evidence. He said that he kept a car stored at his daughter’s place under the house which was a “champagne gold, goldie colour”. It was left there for three to four months in 2003.
[17] The prosecution also called evidence from the complainant’s youth worker. The complainant was in her care from September 2005 until the date of trial in July 2009. Since that date the complainant had been living in residential supported accommodation with paid carers. The youth worker said that in March 2006 the complainant spoke to her because she was concerned about another young girl in the house and how she had experienced the same when she was young with the appellant. She did not wish to speak about it any more.
[18] Then on 4 May 2006, the complainant spoke to her mother on the telephone and the youth worker monitored the conversation. She said she told her mother that when she was eight years old the appellant had touched her, kissed her breasts and put his finger in her vagina. She also said “ [the appellant] licked my vagina and tried to put his penis inside me.” She said he put a condom on and she could see the gunk at the end of the condom. She started dry reaching during the conversation with her mother. On the following morning she called to her youth worker while she was in the shower and said she could still “taste it”.
[19] The youth worker reported that she heard the complainant tell her mother that when the appellant looked after her and the other children, he would touch her when her mother went to racing car meetings. The youth worker said that the complainant was aware of her presence during the telephone conversation and the telephone was on speaker phone because the complainant knew that the telephone call was being monitored. The youth worker was not cross-examined.
[20] Evidence was also led from a co-ordinator at the house where the complainant stayed after she was removed from her mother’s house. All the children in the house are under child protection orders from the Department of Child Safety. On 12 April 2006 he spoke to the complainant who told him that she was sexually abused by the appellant, her mother’s brother. She drew pictures and described what happened. He was not cross-examined.
[21] The next witness was the complainant’s mother’s partner. He said that in June 2003 his partner’s brother, the appellant, looked after the complainant and her little brother while he and the complainant’s mother went to Willowbank for a drag racing event. They were away overnight. He said that the complainant told him that the appellant had touched her in inappropriate ways. She was only seven at the time. He said he approached the appellant and asked him about it. He said the appellant became angry and walked off and nothing more was made of it. He gave evidence of the various houses that he lived in with his partner and her children which included the complainant. His evidence was that there were two cars kept under the house where count 3 is alleged to have occurred: a Honda Prelude coupe that belonged to the appellant’s father and a brown Corolla which belonged to him.
[22] The complainant’s mother gave evidence. She said that the complainant was born on 4 September 1995. The mother has seven younger children. She remembers leaving the complainant and another child with the appellant while she and her partner went away on a Queen’s Birthday long weekend to a drag racing event.
[23] The complainant’s mother gave evidence that she was telephoned by the complainant on 4 May 2006 where she told her that the appellant had used a condom which had “gunk” in it and the complainant had to chew it. She told her mother a number of other things and was gagging on the phone. She said something along the lines that he had “licked her on her wee wee”. The complainant said that that had happened when her mother was away at the drag racing event with her partner. The complainant’s mother said that she and her mother-in-law typed up the information and took it immediately to the police.
[24] The prosecution also called the mother of the partner of the complainant’s mother. She also recalled the telephone conversation which she also listened into on an extension phone.
[25] The prosecution also relied on evidence from Katie Thompson a doctor of clinical psychology who counselled the complainant from late 2005. On 3 May 2006 the complainant told her counsellor that the appellant had sexually abused her.
[26] The defence, as it was entitled to, did not give or call evidence.
[27] The learned trial judge reviewed the evidence and pointed out to the members of the jury all the inconsistencies in the evidence. The jury retired at 12.23pm and returned with verdicts at 2.32pm on the same day.
[28] With regard to count 1, the jury was entitled to be satisfied beyond reasonable doubt that the events occurred as described by the complainant. The appellant points to the length of time between the offending and the giving of the complainant’s evidence, the fact that she was asleep when the offending commenced and her evidence on the other counts contained internal inconsistencies. None of those matters, however, meant that the jury was not entitled to rely on her account of this offence, which she carefully described, which woke her from sleep and was particularly memorable both for the circumstances which meant that she was in the care of her uncle for that weekend and was the first occasion on which the appellant offended against her. The circumstances in which her mother and her partner were away for the weekend was supported by their evidence as to their absence for a drag racing rally with the complainant and her younger brother being left in the care of her uncle the appellant.
[29] With regard to count 3, the appellant relied on the fact that the complainant gave different accounts of this offence when interviewed by the police and when she gave her pre-recorded evidence. There were some inconsistencies between these two accounts, such as precisely where she was when the incident occurred, whether on the boot of, or locked inside the car. Her account of the layout of under the house was not supported by her mother. However, her account of the precise nature of this unusual offence did not change; her evidence as to the motor vehicles under the house was supported by other evidence and it was said to be memorable, not only for the particularly unpleasant nature of the offence and her surprise when she thought she was getting a treat, but also because it was the last occasion on which she said he offended against her.
[30] There were inconsistencies between the two accounts the complainant gave but it was essentially a matter for the jury to determine whether that was because she was being untruthful or whether those inconsistencies were accounted for by the length of time between the offending, her initial account to the police, and the date of giving evidence. It was a matter for the jury whether the inconsistencies in her accounts were the result of the time lapse and her endeavours to be truthful on each occasion or whether they undermined her testimony so that the jurors could not rely on it. This is not a case where the inconsistencies in her evidence were such as to lead an appellate court to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1 and 3.
Inconsistent verdicts
[31] The appellant submitted that there was an inconsistency between the guilty verdicts on counts 1 and 3 and the acquittal for count 2. This may afford one way of demonstrating that a jury has acted unreasonably: see R v DAL [2005] QCA 281 at [22] per Keane JA. However the question of inconsistent verdicts is not simply a matter of saying that in a case where the convictions depend in large part on the jury’s acceptance of the complainant’s evidence then any result other than conviction or acquittal on all counts suggests inconsistent verdicts. There are many reasons why a jury’s verdict may not be the same on individual counts. The first is referrable to the instructions given by a trial judge to the jury to consider each offence separately and reminding them that their verdicts need not be the same on each count.
[32] In the course of his summing up the learned trial judge made the following directions to the jury with regard to the three separate counts against the appellant and the way in which the jury should consider the evidence relevant to each count and the effect that their assessment of the complainant’s reliability on one count would have on the other counts. His Honour said:
“Now, I have mentioned that there are three charges. They are separate charges. You must consider each charge separately, evaluating the evidence related to that particular charge, to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved its essential elements. You will return separate verdicts for each charge. The evidence in relation to the separate offences is different, and so your verdicts need not be the same. The elements of the offences are different, so your verdicts need not be the same.
If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence. Your general assessment of the complainant as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when considering that count.
Now, it may occur in respect of one of the counts that for some reason you are not sufficiently confident of her evidence to convict in respect of that count. The situation may arise where in relation to a particular count you get to the point where, although you are inclined to think she is probably right, you have some reasonable doubt about an element or elements of that particular offence. Now, if that occurs, of course, you find the defendant not guilty in relation to that count. That does not mean you cannot convict of any other count. You have to consider why you have some reasonable doubt about that part of her evidence, and consider whether it affects the way you assess the rest of her evidence – that is, whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count.”
[33] It is apparent that a jury carefully following the judge’s instructions might be as likely to reach different verdicts on different counts as they are to reach similar verdicts on each count.
[34] Various matters of principle have been expounded by the High Court and this court as to the reasons why verdicts may rationally differ. These were referred to recently by Applegarth J in R v SBL [2009] QCA 130 where his Honour quoted from MacKenzie v The Queen (1996) 190 CLR 348 and decisions by Jerrard JA and Holmes J (as her Honour then was) as follows:
“The issue of inconsistency
[28]In MacKenzie v The Queen Gaudron, Gummow and Kirby JJ stated that where alleged inconsistency arises in the case of jury verdicts upon different counts, the test is one of “logic and reasonableness”. Their Honours stated:
‘…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’[1](citations omitted)
[29]Various matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury. In R v CX[2] Jerrard JA stated:
‘1.Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.
2.Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?
3.Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.
4.The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.
5.Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant…’. (citations omitted)
[30]In R v Smillie[3] Holmes J (as her Honour then was) summarised some of the factors that are relevant in considering how verdicts may rationally differ:
‘1. The quality of the evidence
The jury may have found the quality of the crucial witness’ evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness’ general honesty. Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.
2.The existence of contradictory evidence on some matters
There may in respect of some counts be evidence contradicting the crucial witness’ account such as to explain a variation in the jury’s verdict. Whether the force of the contradictory evidence goes beyond demonstrating a discrepancy explicable as mistake and warranting a doubt on the part of the jury, so that it must be regarded as undermining the credibility of the witness (as was the case in Jones v The Queen (1997) 191 CLR 439) is a question of fact in each case.
3.The existence of corroboration on some counts
Different verdicts may be explicable on the basis that the witness’ evidence was supported in respect of some counts but not others, by, for example, admissions by the accused.
4.The ‘merciful’ verdict
As recognised in MacKenzie v The Queen (1996) 190 CLR 348 at 367 and R v P [2002] 2 Qd R 401 at 410, a jury may have decided that it would be oppressive to convict on all charges; that, for example, in a case where there are multiple counts, conviction on a number may sufficiently reflect the culpability of the accused.”