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R v Lawton[2021] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lawton [2021] QCA 272

PARTIES:

R

v

LAWTON, Kenneth James

(appellant/applicant)

FILE NO/S:

CA No 115 of 2019

DC No 1456 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 April 2019; Date of Sentence 18 April 2019 (Morzone QC DCJ)

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGES:

Morrison and Mullins JJA and Crow J

ORDERS:

  1. Appeal against conviction is dismissed.
  2. Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was convicted at trial of five counts of sexual offending against children including indecent treatment and carnal knowledge – where the complainants were two brothers, one aged nine and the other between 11 and 15 at the time of the offences – where the appellant was a friend of the children’s parents – where the counts against both brothers involved the appellant committing penetrative acts on the brothers at separate times – where the counts involving the younger brother involved the appellant inviting the complainant to sit on his lap whilst in a car and sodomising the complainant – where the older brother gave evidence of another “40 plus” occasions where sexual offending was perpetrated upon him by the appellant including an incident which occurred while the appellant was driving and the older brother was invited to sit on the appellant’s lap – where the appellant applied at first instance to have a separate trial for the counts relating to the younger brother on the grounds that the offending was not strikingly similar and that there was a rational view of the evidence consistent with the appellant’s innocence – where the appellant at first instance did accept that the discreditable conduct for both complainant is admissible in the respondent’s case – where the pre-trial hearing judge at first instance refused the application for severance – where the appellant argues upon appeal that the sheer volume of the “40 plus” other uncharged acts of sexual offending “overwhelmed” the jury – whether the counts against the younger brother formed part of a series of offences of the same or similar character as those involving the older brother – whether there were sufficient similarities between the charged and uncharged acts as against both the brothers so as to make them admissible in the proof of the other – whether the “sheer volume” of the uncharged acts alleged by the older brother would have overwhelmed the jury so as to be prejudicial – whether the pre-trial hearing judge erred in refusing the application to sever the indictment – whether a miscarriage of justice occurred due to the indictment not being severed

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of five counts of sodomy against two brothers – where the offences occurred in the 1980s – where the appellant was a family friend – where the offences occurred whilst the appellant was alone with each of the brothers – where the evidence of one of the brothers referred to a time period in which it would be unlikely the offences occurred as alleged – whether the jury could be satisfied beyond reasonable doubt that the offences occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – OTHER MATTERS – where the appellant was in hospital due to health issues and unable to physically attend court – where the appellant was able to telephone into the court and hear, but not see, the proceedings – where the judge at first instance ordered that the evidence of the complainants be pre-recorded pursuant to s 21A(2)(e) of the Evidence Act 1977 (Qld) in circumstances where the appellant was only able to hear the evidence via the telephone – where adjournments were provided to allow for the appellant to confidentially provide instructions to his legal representatives – whether the judge at first instance erred in law by proceeding with the pre-record of the evidence in circumstances where the appellant was physically excluded from the court and unable to see the witnesses

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to imprisonment for seven years and four months for each of counts 1, 2, 3 and 5 and a lesser, concurrent sentence of two years for count 4 – where no parole date was set by the court – where the appellant contends that the sentence is manifestly excessive having regard to the comparable cases, his youth at the time of the offending, his character, and ill health at the time of sentencing – whether the sentence imposed, taking into account the factors raised, was so disproportionately high as to reflect a misapplication of principle by the sentence judge

Criminal Code 1899 (Qld), s 597A, s 617

Evidence Act 1977 (Qld), s 21A

R v Alexander [1986] CCA 137, cited

R v H [1999] QCA 465, cited

R v Hanna [2021] QCA 48, cited

R v McNeish (2019) 2 QR 355; [2019] QCA 191, followed

R v SAR [2005] QCA 426, followed

R v Wilson [1990] CCA 299, cited

COUNSEL:

S L Kissick for the appellant/applicant

G J Cummings for the respondent

SOLICITORS:

MacDonald Law for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:

Introduction

  1. [2]
    The appellant was convicted of five counts of sexual offending against two brothers, R and J.  A single indictment was presented against the appellant in respect of the five counts, as the offences were of a similar character.[1]  The indictment contained two additional charges (against another complainant) which were severed by consent.  On 12 June 2018, an application to sever counts 1 to 3 and counts 4 and 5 on the indictment, so as to have separate trials regarding each complaint was heard and refused.[2]
  2. [3]
    The appellant appeals his convictions on the basis that the indictment should have been severed and that the verdict were unreasonable.  The appellant was also granted leave to add a further ground of appeal, namely “the learned trial judge erred in law by ordering the proceedings continue in the absence of the physical presence of the appellant so that he was excluded from the court and unable to see the witnesses”.  Finally, leave is sought to appeal against the sentence on the basis that it is manifestly excessive.

Severance

  1. [4]
    Section 597A(1) and (1AA) of the Criminal Code 1899 (Qld) state:

597A Separate trials where 2 or more charges against the same person

(1) Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.

(1AA) In considering potential prejudice, embarrassment or other reason for ordering separate trials under this provision in relation to alleged offences of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.”

  1. [5]
    Counts 1, 2, and 3 on the indictment were particularised as occurring between 31 December 1980 and 18 June 1985, each being an offence of sodomy against the older brother, R.  In respect of these three charged counts, evidence was led directly from R as to the circumstances of each of the three charged counts of sodomy, but also some “40 plus”[3] other occasions the appellant sodomised him.[4]  Importantly, one of the uncharged acts of sodomy involved the appellant inviting R to sit on his lap whilst the appellant was in a motor vehicle before sodomising R.
  2. [6]
    Counts 4 and 5 occurred between September 1981 and September 1984 and were committed against J, R’s younger brother.  Those counts related to a single incident, which occurred in a motor vehicle while the complainant was sitting in the appellant’s lap in a motor vehicle.  Count 4 was particularised as the appellant rubbing his penis up and down J’s buttocks and count 5 was particularised as the appellant penetrating J’s anus with his penis.
  3. [7]
    In R v McNeish (2019) 2 QR 355, the Court of Appeal was faced with an argument to sever three counts of indecent treatment of the eldest sister, E, from 19 counts of sexual offending including maintaining a sexual relationship and rape of E’s two younger sisters, L and M.  The appellant in McNeish argued that there was insufficient unity between the type of offending perpetrated against E and the more serious offending perpetrated against L and M.  This argument was rejected by the majority (Sofronoff P and Henry J).
  4. [8]
    Relevantly, Sofronoff P and Henry J said:[5]

“[29] The relationship between the contested evidence and the issue to which it is directed may take many forms and the relationship cannot be confined to ‘striking similarity’. It would also be a mistake to draw up a closed list of the sorts of cases in which the principle operates. Labels and definitive descriptions, while useful, are neither comprehensive nor restrictive.

[30] In such cases, this kind of evidence may be led for a number of purposes, including, but not limited, to these:

  1. To remove the implausibility that might otherwise be attributed to the complainant's account of the offence if the offending were thought to be an isolated incident; (sometimes called ‘relationship evidence’).
  1. To demonstrate the sexual attraction felt by the accused so as to show a motive to commit the offence; (‘motivation evidence’ and sometimes also called ‘relationship evidence’).
  1. To demonstrate that the accused not only had a motive to commit the offence but that he was a person who was prepared to act on his motivation to commit the charged offence because he had committed similar offences against the complainant or others previously. (sometimes called ‘tendency’ or ‘propensity’ evidence)
  1. To identify the offender, as in Pfennig itself.

[31] The first three categories are cases in which the evidence is led to supplement other evidence that an offence has been committed by the accused. The fourth category involves cases in which the fact that an offence has been committed is proved by other evidence and the disputed evidence is tendered to identify the accused as the offender. To these categories, one can add a fifth category for completeness. As in Makin v Attorney-General for New South Wales, sometimes similar factual evidence is led as circumstantial evidence that an offence has been committed and that the accused is the offender…”

(Citations omitted.)

  1. [9]
    In the present appeal, the appellant does not argue that the uncharged act of sodomy of R in the motor vehicle and the charged acts against J are not cross-admissible.  Plainly, this evidence falls within the categories of either relationship evidence, motivation evidence, and tendency or propensity evidence as identified in McNeish.  Rather, the appellant’s argument is that counts 4 and 5 ought to have been severed because the sheer amount of evidence relating to the uncharged acts against R “may simply overwhelm” the jury.[6]
  2. [10]
    In McNeish, Sofronoff P and Henry J said:[7]

“[56] Probative force is another way to refer to the weight of evidence. Evidence is relevant if it makes a fact in issue either more or less probable. Weight of evidence, or probative value, is the degree of probability generated by the evidence. Evidence will have a prejudicial effect if there is a risk that the jury might use the evidence against the accused in a logically irrational manner. In Pfennig, McHugh J remarked that probative value and prejudicial effect are incommensurables. That is to say, they have no common standard of comparison. McHugh J observed that the real question that is posed is not whether probative value ‘outweighs’ prejudicial effect but whether the interests of justice require the evidence to be admitted despite the risk of its misuse. Whether it is called a weighing of probative value against the risk of prejudice to the accused or whether it is called a consideration of the interests of justice, the task remains the same. The need to decide this issue is one of the many familiar, if difficult, tasks that trial judges have to perform by considering relevance to particular identified issues, cogency, the nature of the risk of an impermissible path of reasoning to guilt and whether directions can alleviate or remove such risks…”

(Citations omitted.)

  1. [11]
    As Sofronoff P and Henry J observed in McNeish,[8] the inclination on the part of an adult to engage in sexual conduct with underaged children, coupled with a willingness to act upon that inclination is itself an unusual disposition according to ordinary human experience, such that evidence of such an inclination has significant probative effect and is admissible.  In McNeish, their Honours set out the four “steps” that ought to be undertaken when determining whether evidence of uncharged acts ought to be admitted.  Their Honours said:[9]

“[47] This logic is equally applicable under the common law. It requires a judge who is considering evidence of uncharged acts against multiple complainants to consider the following.

[48] First, what is the factual issue that the Crown seeks to prove by the evidence? In Hughes the Crown’s statutory notice stated that the Crown intended to prove the following about the accused:

  1. To having a sexual interest in female children under 16 years of age;
  1. To use of his social and familial relationships with the families to obtain access to female children under 16 years of age so that he could engage in sexual activities with them;
  1. To use of his daughter’s relationship with female children to obtain access to them so that he could engage in sexual activities with them;
  1. To use of his working relationship with females to utilise an opportunity to engage in sexual activities;
  1. To engage in sexual conduct with females aged under 16 years of age by either:
  1. (a)
    Touching in an inappropriate sexual way and then maintaining that the contact had been inadvertent or accidental;
  1. (b)
    By exposing his naked penis/genitalia to them;
  1. (c)
    By making a child come into contact with his penis/genitalia;
  1. (d)
    By touching a child’s vaginal area;
  1. (e)
    By carrying out sexual acts upon the complainants even when they were within the vicinity of another adult.

[49]As Gageler J has observed, this boiled down to an assertion that Hughes had a tendency to have a sexual interest in girls under 16 years of age and to engage in sexual activities with them using his social, familial or working relationships to obtain access to them.

[50]  Second, having identified the tendency, it is necessary to decide whether the evidence, if accepted, would prove that tendency.

[51] Third, it is necessary to consider whether the evidence of the uncharged acts, if accepted, contains some feature which links the doing of the uncharged acts with the charged offence by reference to a particular issue in the case, whether that is identity, the issue of the commission of the offence or some other issue. That feature may demonstrate a tendency to act in aparticular way, proof of which increases the likelihood that the account of the offence under consideration is true. That was the case inHughes, in which proof that the accused was an adult of mature years who had a sexual interest in girls under 16 years of age and a willingness to act upon that interest by committing uncharged sexual offences against such girls opportunistically, in circumstances involving a high risk of detection, tended to make the commission of that particular offence more probable.

[52] Fourth, and finally, it is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect. In this context, ‘prejudicial effect’ is constituted by the use of the evidence, by the jury, for an impermissible purpose. It would be impermissible for a jury to use evidence of uncharged acts to reason that, because the accused is a discreditable person, the accused is guilty or is deserving of conviction irrespective of guilt. It would be impermissible for a jury to reason that, because the accused is guilty of one offence then the accused must be guilty of the charged offence. Other cases will present the potential for other kinds of impermissible reasoning. In every case it is the risk of such impermissible reasoning that is the relevant ‘risk of prejudicial effect’ that must be considered against the probative value of the evidence.”

(Citations omitted; Original emphasis.)

  1. [12]
    The appellant’s central contentions were that a miscarriage of justice occurred because the counts were not severed, in that:[10]
    1. (a)
      the trial was conducted in circumstances where none of the charged offences were said to be cross-admissible, and the extensive evidence of sexual interest established by persistent serious particularised offending against R was led;
    2. (b)
      whilst there was similarity in respect of using a motor vehicle as a ruse about teaching R and J to drive, it was not a special hallmark because it was often seen as a ruse to gain proximity and opportunity to offend against children;
    3. (c)
      on the issue of identity, there was a divergence of evidence; on R’s evidence he was about seven years old when the car incident occurred; if that were so, the admissions as to the appellant’s date of birth meant the appellant could only have been about 14 and therefore unlikely to have been driving; and
    4. (d)
      the focus on anal penetration prejudiced the appellant in a way not curable by directions, because of the extensive evidence concerning R compared to the limited evidence concerning J; that disparity might have led to the jury using the evidence in a “logically irrational manner” because they were overwhelmed by R’s evidence of the 40 or more uncharged acts.
  2. [13]
    There are a number of difficulties confronting acceptance of those contentions.
  3. [14]
    First, the evidence of each of R and J was admitted against the other only for a specific and limited purpose.  The jury were given explicit directions as to that limited way in which the evidence could be used.[11]  That was, in essence, that the prosecution’s case was that there was such a similarity between the acts and the circumstances in which they occurred that it was highly improbable the events simply occurred by chance.  The jury were directed that before the evidence could be used that way they had to be satisfied that: (i) the evidence was independent and there was no risk of concoction; (ii) the evidence was truthful and accurate as to the similar conduct; (iii) that the facts of the particular complaint were so similar to the allegations of the other, that there was no reasonable view other than that the acts were as alleged.
  4. [15]
    Secondly, the jury were specifically warned against using that evidence as propensity evidence.[12]
  5. [16]
    Thirdly, the jury were reminded that the evidence of R as to the car incident concerning him was relevant only to counts 4 and 5 concerning J.[13]
  6. [17]
    Fourthly, counts 4 and 5 (concerning J) were acts of anal intercourse in a car.  None of counts 1-3 (concerning R) related to anything similar.  R’s evidence of anal rape in a car was an uncharged act.  At the trial defence counsel accepted that the evidence as to the other uncharged acts went only to whether it demonstrated a sexual interest in R.[14]  Express directions were given accordingly.[15]
  7. [18]
    Fifthly, the appellant’s conduct with respect to R demonstrated a pattern of sexual behaviour towards an underage boy, in circumstances where that behaviour occurred regardless of risk in public places, including in a car on a public road.  Further, the sexual interaction was largely limited to anal penetration.  The conduct towards J bore the same characteristics.  Thus there was a striking similarity: R and J were in the same age bracket, the offences occurred in the same locality, the offences both occurred in a motor vehicle, there was a threat to silence, the reasons for getting into the utility were the same, and the reason for having each complainant sit on the knee of the appellant was the same, i.e. so that the child complainant could “have a go at driving”.[16]
  8. [19]
    Sixthly, it was open to the jury to reason that there was an obvious answer to the contention that it should be inferred that the appellant would have been between 13 and 15 years of age, and so it was unlikely that the appellant would be driving a motor vehicle (let alone the owner of a relatively new HQ Holden utility).  That is, of course, unless R was mistaken as to his age at the time.  Such a conclusion would not necessarily lead to a rejection of R’s evidence, or serious doubt about it.
  9. [20]
    Seventhly, the contentions are inconsistent with the appellant’s concession on the pre-trial application to sever that “the discreditable conduct for both complainants is admissible in the respondent’s case”.[17]  That concession was correctly made, and, more importantly, the exclusion of the uncharged acts concerning R would have deprived the jury of a proper factual basis upon which to assess complaints made by R concerning the car incident.  The application to sever was not renewed at the trial.  The appellant should be bound by that concession and cannot now raise a miscarriage of justice based upon the contrary position.[18]
  10. [21]
    In a separate trial for counts 4 and 5, allowing only the car-related uncharged account into evidence (and not the evidence of the 39 other occasions) would have presented the jury a factual context in respect of the car allegations made by R in an “unrealistically truncated form” and prevented the jury from seeing the Crown case “in its true factual context”.[19]  In such a truncated form, the jury would have been deprived of the opportunity to judge for itself whether R was mistaken as to his dates, as, accepting the jury’s verdict, he plainly was.  Accordingly, the “weighty” evidence of the 40 or so uncharged acts by the appellant was relevant and admissible to the consideration of counts 4 and 5.
  11. [22]
    In the present case, the charged and uncharged acts involve allegations against the appellant, a person well known to R, J, and their families, involving similar acts of sexual offences against two boys, J aged approximately 9 and R being aged between 11 and 15.  The necessity for the jury to consider each charge separately was emphasised by the primary judge in his directions.  The appellant further argues that the jury did not have the assistance of a full direction in terms of using the charged acts cross-admissibly as required by Benchbook direction 52.  However, the absence of the full direction has not been demonstrated.  Therefore, there was no error of law in the refusal to sever the counts and no miscarriage of justice occurred due to the refusal to sever.

Unreasonable Verdict

  1. [23]
    In R v Hanna [2021] QCA 48, Morrison JA summarised the relevant principles relating to determining an appeal on the grounds that the verdict was unreasonable.  Morrison JA said:[20]

“[32] In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.

[33] The role of the appellate court was recently restated in Pell v The Queen:

‘The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained areasonable doubt as to proof of guilt.’”

(Citations omitted.)

  1. [24]
    An independent review of the evidence in the present case reveals that this case depended upon the assessment, by the jury, of the evidence given by the complainants.  Each of the five counts of sexual offences said to be committed by the appellant whilst the appellant was alone with R for counts 1, 2 and 3, and J for counts 4 and 5.
  2. [25]
    The jury were directed with respect to the use of R’s evidence which was cross-admissible in the case against the appellant in respect of counts 4 and 5, namely the motor vehicle incident.  The appellant did not give evidence.  It may be assumed, implicitly from their verdict, that the jury assessed the complainants to be credible and reliable witnesses, and nothing in the record indicates that the jury ought to have done otherwise.
  3. [26]
    Bearing in mind that each of the counts occurred in the early 1980s and that the trial was conducted some 37-odd years later in 2019, it is understandable that there might not be perfect chronological consistency in all of the evidence of the complainants.  The anachronism in R’s evidence in respect of the uncharged act of sodomy in a motor vehicle is plain.  In his initial statement to police, R alleged that he was sodomised in the yellow ute when he was “about 7 years of age”.  As R was born in 1969, the allegation of being sodomised in the yellow ute would have occurred in or about 1976.  The difficulty with that is that the appellant, having been born in 1962 was 14 years of age in 1976 and therefore would be unlikely to be driving a motor vehicle, let alone owning one.
  4. [27]
    Whilst some anachronisms can be demonstrated, a fair reading of the whole of R’s evidence is that R had difficulty being accurate as to his age when the events the subject of the counts and the uncharged acts occurred.  There are several instances where R said he couldn’t be sure with respect to his age.[21]  Given R’s evidence of the “40 plus” other occasions, it is understandable, as the jury obviously found, for R to be confused or incorrect with dates of the offending.
  5. [28]
    In seeking to persuade the jury that R’s evidence was not credible or reliable, defence counsel pointed to those inconsistencies.  Despite those inconsistencies, the jury found R to be reliable and credible, an assessment that falls well into the prerogative of the jury.  We conclude that the inconsistency and discrepancies of time are explicable in light of all of R’s evidence, and the length of time between the offences and the trial, and are not of such moment that a jury, acting rationally, ought nonetheless have entertained reasonable doubt as to proof of guilt.

Exclusion of appellant

  1. [29]
    The appellant was given leave on the hearing of the appeal to include an additional ground of appeal that the learned trial judge erred in law by ordering the proceedings continue in the absence of the physical presence of the appellant, so he was excluded from the courtroom and unable to see the witnesses in breach of s 21A(4) of the Evidence Act 1977 (Qld) (the Act).
  2. [30]
    The circumstances that gave rise to this ground of appeal are as follows.  The trial was due to commence before Everson DCJ with a jury on 10 December 2018.  Before the jury was empanelled, the prosecution applied for the complainants R and J to be deemed special witnesses.  Orders were made declaring each of R and J a special witness.  Additional orders were made in the following terms:

“2. The special witness give evidence in a room other than that in which the court is sitting, and from which all persons other than those specified by the court are excluded;

3. That a video recording of the evidence of [the special witness] be made pursuant to section 21A(2)(e) of the Evidence Act 1977 (Qld); and

4. Copies of the recording be made to the parties in the usual manner so as to facilitate admissibility under the provisions of section 21A(6) of the Evidence Act 1977 (Qld) should that prove necessary upon any retrial of the matter.”

  1. [31]
    On the first day of the trial, R’s evidence-in-chief commenced to be given by closed circuit television, as R was located in a room outside the courtroom.  On 11 December 2018 a juror was absent, the appellant was hospitalised and the jury was discharged.  An order was made on that date that the balance of the evidence of R and all the evidence of J was to be pre-recorded on 13 December 2018 or as soon as possible.
  2. [32]
    When the hearing for the pre-recording commenced on 13 December 2018 the trial judge amended the orders made on 10 December 2018 and made formal orders that the evidence of each complainant be pre-recorded, with the balance of the evidence-in-chief of R to be recorded on 13 December 2018 and all the evidence of J also to be recorded on that date and in all other respects the orders made on 10 December 2018 remained the same.
  3. [33]
    A letter had been sent on 12 December 2018 to the court from the nurse who was the manager of the security unit at the Princess Alexandra Hospital which confirmed that the appellant was hospitalised.  Arrangements were made for him to telephone the court, so he could hear everything that went on in the courtroom.  The trial judge expressed the view that as the matter had resulted in a jury being discharged on three occasions “it is in the interest of justice that the testimony of the complainants be obtained in circumstances where there is no prejudice to the defendant, by him being able to hear the evidence and then give instructions to his legal representatives, so that any cross-examination of the witnesses can occur in circumstances where the defendant is fully appraised of the evidence of the complainants which has been given against him”.  The trial judge explained his proposal was to adjourn the court at the conclusion of the evidence-in-chief of each complainant to enable the appellant to give instructions to his legal representatives confidentially and that cross-examination would proceed only after he had given instructions to his legal representatives.
  4. [34]
    Counsel who appeared at that hearing did not refer the trial judge to s 21A(2) of the Act, but did refer to the provision that applies generally to the presence of an accused person at his or her trial that is found in s 617(1) of the Criminal Code (Qld).  The trial judge repeated his view that the appellant was not prejudiced by not being in the courtroom, providing the telephone link was open to him at all times.
  5. [35]
    The very experienced criminal defence barrister who appeared for the appellant on that hearing objected to the proposal on the basis that the trial must take place in the presence of the accused person while he is in the courtroom, which means more than his listening over the phone from his hospital bed.  The appellant’s counsel at the pre-recording did not raise any specific prejudice that would arise from the appellant being present only on the telephone.  The trial judge ruled that the hearing was not a trial, as it was a pre-recording and the trial judge could see no necessity for the appellant to be present in the courtroom, when there was no jury.  If it were a trial, the trial judge gave alternative reasons that the appellant had conducted himself by not complying with his medication and that led to his hospitalisation, so that it was his own conduct that necessitated his being able to be present only on the telephone and the trial judge ordered the pre-recording to continue in the manner that he had directed.
  6. [36]
    The pre-recording of the balance of R’s evidence then proceeded, including the cross-examination via video link.  During a short adjournment in the middle of cross-examination, the appellant’s counsel was given the opportunity to take instructions from the appellant.  When the cross-examination was almost completed, another very short adjournment was given to enable the appellant’s counsel to take more instructions.  There was no further cross-examination or re-examination.  The evidence of J was then recorded via video link and again towards the conclusion of the cross-examination, a short adjournment was given to allow the appellant’s counsel to take some instructions.  There was no further cross-examination or re-examination.
  7. [37]
    After the pre-recording of evidence was completed on 13 December 2018, the trial judge also made orders in respect of the possession and viewing of the pre-recordings of the complainants’ evidence.  Orders were made by other judges about the editing of the recordings.  The edited recordings were ultimately played before the jury in the appellant’s trial.
  8. [38]
    At the trial, the trial judge gave the standard direction to comply with s 21A(8) of the Act.  As the trial judge before whom the trial proceeded was not the judge who presided at the pre-recording, the direction given in the summing up assumed that the appellant was in the courtroom at the time the complainants gave their evidence via video link.  A reference to the location of the defendant during the pre-recording is not an essential part of the direction required by s 21A(8) and no complaint was made on the appeal about that direction.
  9. [39]
    The first issue that arises on this ground of appeal is whether s 21A(4) of the Act applied to the pre-recording of the complainants’ evidence.  Under s 21A(2), the court may make or give one or more of the orders or directions set out in paragraphs (a) to (f) where a special witness is to give or is giving evidence in the proceeding.  Paragraphs (a) to (c) provide:

“(a) in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose;

  1. (b)
    that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting;
  1. (c)
    that the special witness give evidence in a room—
  1. (i)
    other than that in which the court is sitting; and
  1. (ii)
    from which all persons other than those specified by the court are excluded”.
  1. [40]
    The definition of “criminal proceeding” in the Act includes an examination of witnesses in relation to an indictable offence and therefore covers the pre-recording of evidence of complainants for the purpose of playing the evidence at the trial where the charges proceed on indictment.
  2. [41]
    Paragraph (e) of s 21A(2) permits an order directing that a videorecording of the evidence of the special witness or any portion of it to be made under such conditions that are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness.
  3. [42]
    Section 21A(4) of the Act provides:

“Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which aspecial witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence.”

  1. [43]
    Section 21A(5) of the Act allows the court to make an order that all persons other than those specified by the court be excluded from the room in which the special witness is giving evidence, where the making of a videorecording of the evidence is ordered pursuant to s 21A(2)(e).  That provision contemplates that the videorecording may take place with the special witness giving evidence in the courtroom.  Section 21A was inserted in the Act by s 63 of The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld).  Section 21A(5A) of the Act was originally enacted as a proviso to s 21A(5) and now provides:

“However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination.”

  1. [44]
    Section s 21A(5A) does not appear to be directed at the videorecording of the evidence of a special witness who gives evidence from a room remote from the courtroom, where the examination, cross-examination and re-examination of the special witness took place on the one occasion.
  2. [45]
    There is a distinction drawn in some parts of s 21A between the room from which a special witness gives evidence (where the special witness does not give evidence in the courtroom) and the courtroom.  Under s 21A(7), the room in which a special witness gives evidence pursuant to an order made pursuant to paragraphs (c) or (e) of s 21A(2) is deemed to be part of the court in which the proceeding is being held, which means that all consequences that follow from a room being the court apply to that room, such as issues of contempt.  Other provisions of s 21A are specific about regulating what happens in the courtroom and what happens in the room from which the special witness is giving evidence.  When the special witness gives evidence from a room other than the courtroom and that evidence is being videorecorded, those who are required for the sitting of the court for the purpose of the videorecording (the judge, counsel, instructing solicitors or clerks and usually the defendant) are present in the courtroom and not the room in which the special witness is giving evidence.
  3. [46]
    The trial judge had made the order under s 21A(2)(e) in respect of the videorecording of the complainants’ evidence on 13 December 2018, but the effect of the direction that the appellant be present by telephone was that the trial judge had also exercised the power to make an order under s 21A(2)(a) of the Act which had the effect of excluding the appellant from the room in which the court was sitting, except to the extent that the appellant could hear on the telephone.
  4. [47]
    Section 21A(4) applies only when an order is made pursuant to s 21A(2)(a), (b) or (c) that excludes the defendant from the room in which the special witness is giving evidence.  This provision does not apply to orders concerning the defendant’s presence in the courtroom in which the court is sitting, while the evidence of the complainant which is being videorecorded is given in another room.  Section 21A(4) therefore did not apply to the direction made by the trial judge that the appellant be present only by telephone in the courtroom in which the court was sitting at the time of the pre-recording.  Section 21A(4) is apt to apply to the giving of evidence by a special witness in the courtroom where arrangements are made for the defendant outside the courtroom to watch and hear the giving of evidence by the special witness by means of an electronic device.
  5. [48]
    On the hearing of the appeal, the parties did not address the application of s 617(1) of the Code.  It is not appropriate without the benefit of legal argument to express the view on whether that provision applied to the pre-recording of the complainants’ evidence as part of the trial.  Arguably, the process of pre-recording the complainant’s evidence for subsequent tender into evidence at the trial means that the pre-recording hearing is not itself part of the trial.
  6. [49]
    If s 617(1) of the Code did apply, there was an error of law made by the trial judge in limiting the presence of the appellant to his listening to the complainants’ evidence whilst he was on the telephone.  On the appeal, there was no material relied on by the appellant to explain the nature of any prejudice suffered by the appellant in not being present in person and no suggestion that the opportunity given to him to give instructions to his counsel confidentially during breaks in the cross-examination of the complainants was not adequate in the circumstances.  If there were an error of law, the respondent has discharged the onus of showing no substantial miscarriage of justice occurred as a result of the appellant’s presence for the videorecording of the complainants’ evidence being limited to his presence by telephone.
  7. [50]
    This ground of appeal therefore fails.

Sentence

  1. [51]
    The appellant further seeks leave to appeal his sentence on the ground that it was manifestly excessive.  He was sentenced to imprisonment for seven years and four months for each of counts 1, 2, 3 and 5 and two years for count 4.  The sentences are concurrent.  In R v SAR,[22] the Court (McMurdo P, Jerrard JA, Atkinson J) reviewed several appeal authorities regarding sentences imposed in sodomy offences.  In SAR, the appellant pled guilty to two counts of sodomy of a child under the age of 12 years, seven counts of indecent treatment of a child under the age of 14 years, one count of maintaining a sexual relationship with a child under 12 years.  The complainants were sisters and at the time of the offending, were aged between six and eight, and eight and eleven.  SAR was sentenced to eight years’ imprisonment with parole eligibility after three years.  However, that was reduced on appeal to a sentence of seven years with a parole eligibility after 2.5 years.  Importantly the Court of Appeal referred to SAR’s very early plea of guilty (ex officio plea) his spontaneous confession to the offending and his otherwise good conduct.[23]  Relevantly, the court said:[24]

“[14] In R v Wilson this Court reviewed sentences imposed in sodomy offences. Of particular relevance is R v Alexander. That review together with the cases of Law, Main and S persuade me that the sentence imposed here was manifestly excessive. The applicant acted disgracefully towards his two young stepdaughters over afour year period but he voluntarily attended on police and confessed his shameful conduct before any complaint was laid. Without that confession these charges may never have been brought. In addition, he pleaded guilty by ex officio indictment at an early stage, and the complainants have not had to face cross-examination or fear that their evidence may be tested in court and perhaps not accepted. He has not reoffended for over 12years and is otherwise of good character. He has sought counselling and has demonstrated apparently genuine remorse and contrition.

[15] The Court should encourage such post-offending mitigating conduct by significantly reducing the penalty otherwise applicable. The offender's confession before any complaint, timely plea and remorse are factors likely to assist the complainants to better cope with the aftermath of the applicant's serious breach of trust which has tarnished their childhood and their lives.”

(Citations omitted.)

  1. [52]
    A review of SAR and its antecedents (the decisions of Wilson[25] and Alexander[26]) shows that the appellant’s penalty ought not to be significantly reduced as he did not engage in post-offending mitigating conduct.  Specifically, the appellant did not voluntarily attend upon police and confess his shameful conduct before any complaint was laid, has not pleaded guilty, he had the two complainants face cross-examination and fear that their evidence may be tested in court and perhaps not accepted, there is no suggestion that he has sought counselling nor demonstrated genuine remorse or contrition.
  2. [53]
    The appellant’s conduct involved threats of violence, actual sexual violence and harm to the complainants.  Although the offending occurred 40-odd years earlier, it can be observed from J’s victim impact statement that he is still deeply affected by the offence committed upon him.  A review of R’s evidence shows that he likewise is still severely emotionally affected by the conduct perpetrated upon him.
  3. [54]
    At the sentence hearing the appellant, with reference to numerous authorities,[27] as to submitted that the proper range of sentencing for the offences, had the matter been prosecuted in the 1980s, was some five to seven years’ imprisonment.[28]
  4. [55]
    The Crown on the other hand, relying on R v H,[29] submitted that the proper range for a head sentence of time fell between six and nine years, highlighting the lack of remorse of the appellant.  The primary judge considered that the head sentence ought to have been in the order of eight years[30] discounting it by about eight months, taking into account the approximate four months of pre-sentence custody which could not be declared[31].  The appellant submits[32] “it is not possible to distil therefore what reduction in sentence he [the primary judge] in fact allowed for those factors of youth, character and health complications making imprisonment harder.”
  5. [56]
    As to the factor of youth, the appellant was young at the time of the offending, however, the complainants were also young with a seven to eleven-year age difference between the appellant and two brothers.  The learned primary judge did factor in youth, however, it was not an overwhelming feature.  As to the appellant’s character and health complications, the primary judge referred to those in his sentencing reasons, however, he did not provide a specific number of years or discount applicable to each or any of the factors of youth character and health complications.
  6. [57]
    Had the primary judge undertaken such an approach, he would have fallen into error as, having regard to numerous relevant factors, sentencing does not involve a precise mathematical task of allocating a period of imprisonment (or other relevant punishment) to each relevant factor.  The appellant has not demonstrated any error in principle on behalf of the primary judge, nor that the sentence is manifestly excessive.
  7. [58]
    The appeal and application for leave to appeal ought to be dismissed.

Footnotes

[1] The Criminal Code 1899 (Qld) s 567.

[2] AB2 148-157.

[3] AB2 172, line 15-16.

[4] AB2 46 line 41.

[5] R v McNeish (2019) 2 QR 355 at 364 [29] – 365 [31].

[6] Appellant’s written submissions, paragraph 16.

[7] R v McNeish (2019) 2 QR 355 at 372 [56].

[8] R v McNeish (2019) 2 QR 355 at 369 [46].

[9] R v McNeish (2019) 2 QR 355 at 369 [47] – 371 [52].

[10] Appellant’s outline paragraphs 10-21.

[11] AB 47 line 33 to AB 49 line 39.

[12] AB 49 lines 35-44.

[13] AB 50 lines 3-5.

[14] AB 322-323.

[15] AB 46 lines 8-19, AB 47 lines 5-7.

[16] AB2 155.

[17] AB2 131, paragraph 4.1.

[18] Nudd v The Queen [2006] 80 ALJR 614 per Gleeson CJ at 618 [9] following TKWJ v The Queen (2000) 212 CLR 124.

[19] R v McNeish (2019) 2 QR 355 at 366 [33].

[20] R v Hanna [2021] QCA 48 at [32]-[33].

[21] AB2 200, line 31.

[22] [2005] QCA 426.

[23] R v SAR [2005] QCA 426 at [9]-[11].

[24] R v SAR [2005] QCA 426 at [14]-[15].

[25] [1990] CCA 299.

[26] [1986] CCA 137.

[27] R v SAR [2005] QCA 426; R v L; Ex-parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Barnes unreported, Court of Appeal No 137 of 1988; R v Phorr, unreported, Court of Appeal No 271 of 1990; R v McFarlane, unreported, Court of Appeal, No 227 of 1989.

[28] AB2 343, line 40.

[29] R v H [1999] QCA 465.

[30] AB2 352, line 5.

[31] AB2 352.

[32] Appellant’s written submission, paragraph 46.

Close

Editorial Notes

  • Published Case Name:

    R v Lawton

  • Shortened Case Name:

    R v Lawton

  • MNC:

    [2021] QCA 272

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, Crow J

  • Date:

    10 Dec 2021

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC1456/18 (No citation)17 Apr 2019Date of conviction after trial of historical sexual offending against two children (R and J).
Primary JudgmentDC1456/18 (No citation)18 Apr 2019Date of sentence; 5 counts of historical sexual offending (including 4 counts of sodomy) concerning children aged 9 and 11-15 years; sentenced to 7 years and 4 months’ imprisonment (Morzone QC DCJ).
Appeal Determined (QCA)[2021] QCA 27210 Dec 2021Appeal against convictions dismissed; complaint that J counts not severed not made out; jury’s verdicts not unreasonable; accused being limited to listening to prerecording of complainants’ evidence via telephone did not, in the circumstances, constitute a breach of EA s 21A(4). Application for leave to appeal against sentence refused; no error in principle; sentence not manifestly excessive: Morrison JA, Mullins JA, Crow J.

Appeal Status

Appeal Determined (QCA)

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