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R v HCE[2021] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCE [2021] QCA 188

PARTIES:

R

v

HCE

(appellant/applicant)

FILE NO/S:

CA No 190 of 2020

DC No 53 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 11 June 2020; Date of Sentence: 3 August 2020 (Dearden DCJ)

DELIVERED ON:

3 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGES:

Morrison and Mullins JJA and North J

ORDERS:

  1. Appeal dismissed.
  2. Application for leave to appeal the sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant was acquitted of the remaining three counts – where the appellant appeals his conviction on count three on the ground that it is unreasonable or cannot be supported having regard to the evidence – where there were inconsistencies in the evidence of the complainant and the complainant’s mother – whether the trial judge erred by failing to take into account the complainant’s mother’s evidence – whether it was open to the trial judge to be satisfied beyond reasonable doubt of the complainant’s account of the events of count 3 – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts indecent treatment of a child under 12 (counts 1 and 4), one count rape (count 2) and one count attempted rape (count 3) after a trial by judge alone – where the appellant abandoned application to appeal on counts 1 and 4 – where the appellant was sentenced to 5 and a half years on count 2 – whether the sentence is manifestly excessive

Criminal Code (Qld), s 615C, s 668E

Filippou v The Queen (2015) 256 CLR 47; [2005] HCA 29, cited

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited

R v Dalton (2020) 3 QR 273; [2020] QCA 13, cited

R v FAX (2020) 5 QR 117; [2020] QCA 139, cited

R v Hanley [2020] QCA 276, cited

R v RUJ [2021] QCA 114, cited

COUNSEL:

B H P Mumford for the appellant/applicant

D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of North J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    MULLINS JA:  I agree with North J.
  3. [3]
    NORTH J:  The appellant was tried before Dearden DCJ, sitting without a jury, on 8 and 9 June 2020.  He was charged with seven counts the details of which (as particularised)[1] are:

Count one – indecent treatment of a child under 12, under care (between 13 February 2016 and 28 September 2017 at Goodna) – procuring the touching of his penis;

Count two – rape (between 13 February 2016 and 28 September 2017 at Goodna) – digital penetration of her vagina, alternatively indecent treatment of a child under 12, under care;

Count three – attempted rape (between 13 February 2016 and 28 September 2017 at Goodna) – attempted penile penetration of her vagina, alternatively indecent treatment of a child under 12, under care;

Count four – indecent treatment of a child under 12, under care (between 13 February 2016 and 28 September 2017 at Goodna) – wilfully exposing her to an indecent film;

Count five – rape (between 27 September 2017 and 1 December 2017, at Inala) – penile penetration of her mouth;

Count six – indecent treatment of a child under 12, under care (between 27 September 2017 and 1 December 2017, at Inala) – touching his penis;

Count seven – rape (between 27 September 2017 and 25 December 2017, at Inala) – penile penetration of her mouth.

  1. [4]
    On 11 June 2020 his Honour delivered judgment.  He convicted the appellant on counts one to four and acquitted him on counts five to seven.  The appellant was remanded in custody and on 3 August 2020, his Honour sentenced the appellant.  His Honour imposed the following sentences of imprisonment:

Count one – two years;

Count two – five and a half years;

Count three – five and a half years;

Count four – 18 months.

  1. [5]
    All terms of imprisonment were ordered to be served concurrently with one another and his Honour fixed a parole eligibility date of 10 March 2023, two years and nine months from the date on which the appellant had been remanded in custody.
  2. [6]
    On 16 September 2020 the appellant filed a Notice of Appeal against conviction, complaining that “the conviction was unreasonable or cannot be supported having regard to the evidence.”  Subsequently he amended his Notice of Appeal.  The sole ground of the amended Notice of Appeal is:

“The conviction on count three on the indictment was unreasonable or cannot be supported having regard to the evidence, as the learned Trial Judge failed to take into account relevant evidence, namely the evidence of the complainant’s mother as to the conclusion of the events comprising count three on the indictment.”

  1. [7]
    Otherwise the appellant has abandoned the “unsafe or unsatisfactory” ground insofar as it originally encompassed counts one, two and four on the indictment.
  2. [8]
    In the event that the ground of appeal against conviction succeeds the appellant seeks an order that his conviction of count three be quashed and, if successful, he seeks leave to appeal against the sentence imposed on count two on the basis that it is manifestly excessive.  Otherwise the appellant abandoned his application for leave to appeal against sentence on counts one and four.

A summary of the evidence

  1. [9]
    The complainant was born on the 24th of September 2007.  As at the earliest date alleged in the indictment she was eight years of age and she was only 10 years of age as at 25 December 2017 which was the last date alleged in the indictment.  The complainant’s mother and the appellant commenced a relationship and, sometime in August 2013, the appellant moved in with the complainant’s mother at an address at Goodna.  They married in June 2014 and remained at that residence until 8 July 2017 when they separated and the appellant left the house.  The couple reconciled and on 28 September 2017 the appellant with the complainant’s mother and children moved to a house at Inala.  The reconciliation however was short lived and the appellant moved out on 2 November 2017.
  2. [10]
    On 11 September 2018 the complainant took part in an interview with police which was recorded pursuant to s 93A of the Evidence Act 1977.  Her evidence was recorded on 12 May 2020, pursuant to s 21AK of the Evidence Act 1977.  In the s 93A interview with police the complainant alleged (concerning counts one, two, three and four):
    1. (a)
      That the appellant grabbed her hand and placed it on his penis, going up and down with her hand (count one);
    2. (b)
      That the appellant digitally penetrated her vagina in the lounge room (count two);
    3. (c)
      He then took her into the laundry, where he lay on the floor. He was naked from the waist down. He removed her pyjama pants and underwear, and rubbed his penis against her vagina (count three);
    4. (d)
      On a later occasion, exposed her to sexual activity between an adult and child, using her mother’s mobile phone (count four).
  3. [11]
    At the trial counts one, two and three were alleged to have occurred as part of a single episode so that, in the s 93A interview with police on 11 September 2018 the complainant described the events of count three, following counts one and two which were alleged to have occurred in the lounge room, as follows:
    1. (a)
      The appellant pulled her into the laundry:[2]
    2. (b)
      He told her to get on top, but she kept saying “no”;
    3. (c)
      He “decided” to pull her pants down while she was standing up, she accidentally fell, and he grabbed her and put her on top of him:[3]
    4. (d)
      He started moving up and down;[4]
    5. (e)
      Her vagina was on his doodle;[5]
    6. (f)
      He tried to push his doodle into her vagina.[6]
  4. [12]
    In the police interview the complainant described how the episode in the laundry ended as follows:

“Um, mum woke up and [the appellant] quickly said, get off, get off, get off. And I quickly got up, and mum and he, he had enough time to pull his pants up, and when mum walked in, mum might not actually remember this ‘cause it was like at 12 o’clock at night, or she might remember it. I actually have no idea. But um, yeah, when she walked in, um [the appellant] was on the floor with his pants up and I was standing there with my pants down, and when she walked in, she said um, why are you, why you, don’t you have, why are your pants pulled down, [the complainant]? And I said um, because [the appellant] pulled them down. And then [the appellant] was like, no, no, no, no, no, we just um, w-, I just fell over and he came, and she came and, and, oh I can’t remember what he said, but um something happened and—”[7]

  1. [13]
    At the trial the complainant’s mother was called and gave preliminary complaint evidence.  In her evidence in chief the complainant’s mother said that she asked the complainant “when it all” began to which the complainant said “the night that the appellant was drunk in the laundry”.[8]  The complainant’s mother said that she remembered walking down the hallway and seeing the appellant asleep and naked in the laundry.  This incident was followed up by the Crown prosecutor with the complainant’s mother when, a little later in examination in chief, the Crown prosecutor asked the complainant’s mother “did you see anyone else in the laundry at that time?” to which she said “no”.[9]
  2. [14]
    In cross examination the complainant’s mother gave the following evidence:[10]

“And there was some reference to the night [the appellant] was drunk in the laundry?---Yes.

And is it the case that you actually asked [the complainant] – sorry, [the complainant] actually said to you that it happened when [the appellant] was drunk one night and fell asleep in the laundry. Do you remember her saying that?---Yes.

And you said to her, “Was that the night I found him still asleep naked in the laundry?”?---Yes.

So that’s the case that there was an occasion when you came out during the night and [the appellant] was asleep naked in the laundry?---Yes.

And that’s the only occasion you ever remember finding him asleep naked in the laundry?---Yes.

It’s something you would remember, I expect?---Yes.”

  1. [15]
    Counsel for the appellant returned to this issue:[11]

“All right. Now, we were talking a second ago about that – finding [the appellant] naked in the laundry that night?---Yes.

Do you know when – do you have any idea when that was that that occurred?---No.

Right. It was after [….] had passed?---Yes.

Okay. Was it long after [….] had passed, or you’re not sure?---I can’t be so sure.

Okay. And you found him asleep in the laundry?---Yes.

There was never an occasion where you were woken in the middle of the night and found [the appellant] and [the complainant] in the laundry together?---No.

Never an occasion where you have found [the complainant] in the laundry with her pyjama pants and underpants off her?---No.

There was never an occasion at all when you’ve ever found [the complainant] in the middle of the night in the house with her pants off?---No.

And there was never an occasion while you were living at the Goodna house when [the complainant] told you that [the appellant] had taken her pants off?---No.

You’d remember that, wouldn’t you?---Yeah, definitely. Yeah.

That’s not something you as a mum would ever forget?---No. I would’ve gone straight to the police if my daughter had said that to me.”

  1. [16]
    No other evidence was given at the trial in support of count three.

The rival contentions

  1. [17]
    In his submissions on behalf of the appellant, counsel drew attention to the complainant’s evidence that the episode of sexual offending in relation to count three which occurred in the laundry culminated with the complainant’s mother entering the laundry.  According to the complainant the appellant was on the floor with his pants pulled up but that the complainant had her pants down, and when asked by her mother why her pants were down the complainant said that the appellant had pulled them down.  The appellant denied this.  Counsel submitted that the evidence of the complainant’s mother under cross-examination[12] was that no incident involving her occurred.  He submitted that the trial judge was required to weigh the whole of the evidence and in particular the competing evidence.[13]  Counsel submitted that the learned trial judge failed to address the difference between the evidence of the complainant and her mother about the laundry encounter and explain why the evidence of the complainant could still be accepted beyond reasonable doubt.
  2. [18]
    For the respondent, counsel submitted that the account given by the complainant concerning the episode in the laundry was very striking.  She referred to the evidence by the complainant that the appellant took off her pants and underwear and that because she didn’t have a big vagina “he couldn’t fit it in”.  Further she described that the appellant had her “vagina on his doodle” but that it wasn’t in there and that the appellant tried to push it in to her vagina and that it hurt.  Counsel submitted that the complainant’s account of the offending was in a logical sequence with the complainant describing how the appellant lay down on the ground, that she was “half off him”, that she vividly recalled hurting her ankle and that the appellant pulled her towards him.  She submitted that some of the divergences in the evidence between the complainant’s account of what transpired and her mother’s might be accommodated in the context of one having a better memory of events than the other.[14]  Otherwise she submitted that the evidence about the events in the lounge room which “spilled into the laundry” was internally consistent.

Discussion

  1. [19]
    In order to better understand the points made in the competing submissions in the discussion that follows it is relevant to quote extensively from his Honour’s reasons:[15]

“Counts 1, 2 and 3:

The complainant gave evidence that the events, the subject of counts 1, 2 and 3, took place on a single evening at [Redacted], Goodna.

The complainant’s evidence is that the defendant was sitting on the couch watching football; that he kept on telling her to start doing that (she had twice previously unmistakably indicated the act of male masturbation with her hand, observable on the video) and “then he grabbed my hand and made me start doing it again” (exhibit B, P9, LL34-37, and also see P9, LL8-10).

The complainant’s evidence is further that:

Then he put his hands in my vagina

[I interpolate that she then paused for some short period before continuing her evidence]:

…and pushed really hard and it really hurt.

(Exhibit B, P9, LL37-38). She then clarified that the defendant put his fingers in her vagina (exhibit B, P9, LL41-47, exhibit B, P17, LL1-25, LL41-58).

The complainant did not know a name for the actions she indicated of giving male masturbation (exhibit B, P10, LL42-45) but confirmed that the defendant asked her to do it “on his doodle” (exhibit B, P10, LL52-54). The complainant identified that a doodle was used by boys for peeing (exhibit B, P11, LL10-16).

The complainant gave evidence that the defendant then pulled her into the laundry and made her get on top of him (exhibit B, P13, LL26-30), where he pulled her pants down, and put her on top of him (exhibit B, P13, LL51-54). She then described the defendant moving up and down on the floor (exhibit B, P14, LL8-10) and her “jiggling” around on top with his arms around her (exhibit B, P14, LL39-41). She went on to describe the defendant positioning her so her “vagina was on his doodle” (exhibit B, P15, LL37-58) and said that the defendant’s “doodle” wasn’t in her vagina but he tried to push it in to her vagina (exhibit B, P16, L9, L23, LL38-40).

The complainant was carefully and skilfully cross-examined by defence counsel, Ms White, but did not resile from her evidence that the events in the loungeroom (counts 1 and 2) and the subsequent event in the laundry (counts 3) occurred.

The defence submits as follows in respect of counts 1 and 2 (exhibit G, paras 4A, B and C):

There are a number of issues with the complainant’s account of these offences that the court should have regard to:

(a) The complainant refers to her trying to take his hand out of her pants and him slapping the hand away. She says this occurred at the same time he was holding her hand over his penis and the other hand was in or around her vagina. She does not reference either him taking his hand off her hand or him taking her hand off of her vagina. It is difficult to understand how he could have done this while both hands were in use according to the complainant;

(b) The complainant recounts a conversation about him pulling his pants down for the first time in cross-examination in this court. She never previously said any words were spoken during this incident;

(c) There is no complaint by the complainant to her mother when she was her shortly after this incident in the laundry.

In respect of count 3, the defence submits:

  1. (a)
    That the complainant, in her 93 A statement, said the defendant grabbed her by the hand after the loungeroom incident, but in her section 21AK evidence, said the defendant put out his foot;
  1. (b)
    That the complainant’s s. 93A evidence is that both were clothed when they went to the laundry; that he took her pants off and she tripped and fell down; whereas her s. 21AK evidence is that she was pulled to the ground, and the offending could not have occurred if they were both clothed;
  1. (c)
    That the complainant says her mother came in to the laundry and found her with her pants and underpants off, and they had a conversation. [The complainant’s mother] gave evidence that there was no occasion that she found the complainant in the laundry with her pyjama pants and underpants off (T1-21, LL46-47), although she did find the defendant on one occasion asleep in the laundry (T1-21, L41).

The defence also points to inconsistencies in the complainant’s statement about making noise during the events of counts 1, 2 and 3 (exhibit G, PP5-6, para 22).

These points made by the defence, that I have identified, are all legitimate matters, including inconsistencies, variances in the complainant’s evidence and, in particular, a lack of corroboration in respect of count 3 where it might be expected on the complainant’s evidence.

Balanced against those matters, however, are these factors:

  1. (a)
    The complainant’s age at the relevant time (between eight and 10);
  1. (b)
    Her strikingly cogent description of the adult sexual activity involved in each of count 1 (masturbation); count 2 (digital penetration of her vagina); and count 3 (attempted penile/vaginal intercourse with female on top);
  1. (c)
    The complainant did not resile from the core details of the sexual acts in each case;
  1. (d)
    Any inconsistencies or variances, and the lack of corroboration, were not of sufficient cogency that the sexual acts could not have occurred as the complainant describes.

I have, again taken careful note of the directions I have previously outlined in respect to Robinson and Markuleski, and given appropriate weight to the preliminary complaint to [the complainant’s mother].

I refer to my overall assessment of the complainant as an honest and truthful, ie, credible witness. I conclude that she has given credible evidence about the uncharged acts as well, which places the charged acts in context. I note, also, that the conclusions I have reached, in respect of counts 5, 6 and 7, all turn on the complainant’s reliability rather than her credibility.

In these circumstances, in respect of counts 1, 2 and 3, I find the complainant’s evidence to be not only credible but reliable.

It follows that I consider all of the elements of count 1 – indecent treatment of a child under 16, under 12, under care, have been satisfied, beyond reasonable doubt. On the complainant’s evidence, the defendant has procured the complainant to commit the indecent act of masturbating his penis in her presence. She was under his care at the relevant time.

I consider, in respect of count 2, that the complainant’s evidence satisfies me, beyond reasonable doubt, that the defendant penetrated the complainant’s vagina with his finger or fingers. The complainant was under 12 at the relevant time and could not consent.

In respect of count 3, I am satisfied, beyond reasonable doubt, that the defendant attempted to penetrate the complainant’s vagina with his penis but did not actually affect penetration.

It follows that I find the defendant guilty of count 1 – indecent treatment of a child under 16, under 12, under care; count 2 – rape (it is unnecessary to consider the alternative count); and count 3 – attempted rape (it is, again, unnecessary to consider the alternative count).”

(emphasis added)

  1. [20]
    When his Honour turned to his consideration of count three he expressly referred to the inconsistencies in the complainant’s evidence[16] and the discrepancy between her account of the events and the scene in the laundry and that of her mother.[17]  It was that discrepancy or inconsistency that his Honour referred to when he noted the “lack of corroboration in respect of count three”.  It is clear that his Honour had all of the matters agitated by the defence, including the mother’s evidence when he “balanced” and reminded himself of the “cogent” aspects of the complainant’s evidence[18] and of the directions he had given himself.  It is clear from a reading of his Honour’s reasons that when he recorded his finding that in respect of counts one, two and three that the complainant’s evidence was both credible and reliable he had not overlooked the mother’s evidence and reached his conclusion on count three despite the inconsistency with the mother’s evidence.
  2. [21]
    In considering the submissions advanced on behalf of the appellant I have not overlooked the advantage enjoyed by the trial judge who saw both the complainant when interviewed by the police officers and the recorded evidence and saw her mother when she gave evidence in person before him.[19]  According to the complainant’s s 93A statement, the mother’s entry into the laundry was in the middle of the night after she had woken up and there was something about the encounter that made the complainant think that her mother might not remember it.  This aspect of the evidence was not explored further in the cross-examination of the complainant.  My own review of the evidence given by the complainant persuades me, for the reasons given by his Honour, that it was open to him to regard the complainant’s description of the adult sexual activity as “cogent”.  In my assessment upon the whole of the evidence it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty upon count three.
  3. [22]
    The ground of appeal is not made out.

A different characterisation of the appeal

  1. [23]
    The ground of appeal formulated was framed in terms of the “unreasonable verdict ground” within the first limb of s 668E of the Criminal Code.  But at the hearing of the appeal the argument advanced for the appellant suggested that the complaint made by the appellant went to the sufficiency of the reasons for preferring the evidence of the complainant beyond reasonable doubt over that of the mother.[20]  That complaint might be said to raise the third limb of s 668E, the “miscarriage of justice ground”.[21]  It is well established that a complaint concerning the failure to give reasons or the inadequacy of reasons can, depending upon the circumstances, invoke the second limb, an error of law, or the third limb, a miscarriage of justice.[22]  However often the failure to record a required direction or warning while constituting an error of law may also constitute a miscarriage of justice.[23]  The statutory obligation of a trial judge to give reasons can be found in s 615C(3) of the Criminal Code but the animating principle behind that statutory provision is that justice should not only be done but should be seen to be done.[24]  Thus, as Boddice J said in R v FAX:[25]

[107] The duty to give reasons operates as a safeguard to the interests of the accused and the public interest generally. As a matter of general principle, the giving of reasons should include an identification of the principles of law and the findings of fact, together with a statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that it reached.”

  1. [24]
    In argument the question of whether the third limb of s 668E was invoked, whilst not warmly embraced by counsel for the appellant, was not disavowed and he advanced his submissions consistently with the ground as framed.  Be that as it may, in my view it is not necessary to further pursue this issue because, substantially for the reasons I have given, there is no insufficiency in his Honour’s reasons for convicting the appellant upon ground 3.  His reasons adequately and unambiguously explain why he accepted the evidence of the complainant beyond reasonable doubt, preferring that evidence to that of her mother.

Application for leave to appeal sentence

  1. [25]
    The applicant abandoned his application to appeal his sentence on counts one and four.  His application concerning the sentence on count two was conditional upon success in his appeal against his conviction on count three.  In the circumstances the application should be refused.

Orders

  1. [26]
    The Orders should be:
  1. Appeal dismissed.
  2. Application for leave to appeal the sentence refused.

Footnotes

[1]See AR 336.

[2]AR 204.6.

[3]AR 204.28 – 31.

[4]AR 204.45.

[5]AR 206.17.

[6]AR 206.58.

[7]AR 205.

[8]AR 167.

[9]AR 169 l6.

[10]AR 172.

[11]AR 174 l1-27.

[12]See [15] above.

[13]R v Dalton [2020] QCA 13 at [175].

[14]See respondent’s outline at [17].

[15]See AR 81 l13 – AR 84 l8.

[16]See (a) and (b) highlighted above.

[17]See (c) highlighted above.

[18]See paras (a), (b), (c) and (d) above, after “Balanced”.

[19]In the context of a judge alone trial the advantage enjoyed by the trial judge who sees the witnesses is much the same as the advantage enjoyed by a jury.  See in the latter context R v Baden-Clay (2016) 258 CLR 308 at 329-330, [65]-[66], R v Sun [2018] QCA 24 at [31] and MFA v The Queen (2002) 213 CLR 606 at 621-623, [49], [51], [56].

[20]See T1-5 l15 and T1-7 l5 of appeal hearing transcript.

[21]For a recent discussion of the three limbs of section 668E see R v Hanley [2020] QCA 276 at [5] to [9].

[22]See Fleming v The Queen (1998) 197 CLR 250 at 260 [22] and 262 [24].

[23]Consider Filippou v The Queen (2015) 256 CLR 47 at 52-55 [7]-[15] and R v RUJ [2021] QCA 114 at [30]-[37].

[24]Fleming v The Queen (1998) 197 CLR 250 at 260 [22], 262-3 [28] and 265 [37].

[25][2020] QCA 139 at [107], Sofronoff P and Ryan J agreeing.

Close

Editorial Notes

  • Published Case Name:

    R v HCE

  • Shortened Case Name:

    R v HCE

  • MNC:

    [2021] QCA 188

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, North J

  • Date:

    03 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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