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R v HZG[2021] QCA 292

SUPREME COURT OF QUEENSLAND

CITATION:

R v HZG [2021] QCA 292

PARTIES:

R

v

HZG

(appellant/applicant)

FILE NO/S:

CA No 127 of 2020

DC No 50 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Warwick – R v HZG [2020] QDC 108 (Barlow QC DCJ)

DELIVERED ON:

23 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2021

JUDGES:

Sofronoff P and Bond JA and Callaghan J

ORDERS:

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

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNSAFE OR UNSATISFACTORY HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty by the trial judge, sitting without a jury, of indecent treatment of a child under 16, under 12, who is a lineal descendant under care – where the indictment charged that the appellant committed the offences between 17 January 2013 and 2 June 2014 – where, as the trial judge observed, the real issue in the trial was whether the evidence of the complainant was reliable – whether, in all circumstances, the trial judge’s findings of guilt were unreasonable or cannot be supported having regard to the evidence

Criminal Code (Qld), s 210, s 632, s 668E(1)

Evidence Act 1977 (Qld), s 93A

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, cited

R v Harris [2021] QCA 96, considered

R v O [2001] QCA 40, cited

R v RAK [2012] QCA 26, cited

R v UA [2007] QCA 41, cited

COUNSEL:

The appellant/applicant appeared on his own behalf

S L Dennis for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Callaghan J and with the orders proposed by his Honour.
  2. [2]
    BOND JA:  I agree with the reasons for judgment of Callaghan J and with the orders proposed by his Honour.
  3. [3]
    CALLAGHAN J:  The appellant stood trial on one count of indecent treatment of his daughter who was either six of seven years old at the time of the offence.[1]  After a two day trial before his Honour Judge Barlow QC, sitting without a jury, he was found guilty of that offence.  His Honour imposed a sentence of two years and six months imprisonment, which was to be suspended after the appellant had served one year and three months of that term.  The appellant, who represented himself before us, appeals the conviction and applies for leave to appeal against that sentence.
  4. [4]
    The principles applicable to an appeal following a conviction after a trial by judge alone were set out by Fraser JA in R v Harris:[2]

[27] Section 668E(1) of the Criminal Code sets out three grounds upon which the Court must allow an appeal against conviction following a jury’s guilty verdict. The first limb of s 668E(1) requires the Court to allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. A verdict of guilty is unreasonable under that ground if it was not open to the jury on the whole of the evidence: M v The Queen. In that case, the High Court held that in most cases a doubt about guilt experienced by an appellate court will be a doubt the jury also should have experienced, and that:

‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … [i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’

[28] Sections 614 – 615E of the Code make provision for trial by a judge alone. Section 615B requires the judge to apply, as far as practicable, the same principles of law and procedure as would be applied in a trial before a jury. By s 615C(1), in a trial by a judge alone, the judge may make any findings and give any verdict a jury could have made or given if the trial had been before a jury and any finding or verdict of the judge has for all purposes the same effect as a finding or a verdict of a jury. Section 615C(2) provides that, without limiting s 615C(1) chapter 67 (which includes s 668E) applies with all necessary changes in relation to a person tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury. Furthermore, s 615E(2) provides that references in an Act to a jury in the trial of a person include, unless the contrary intention appears, reference to a judge sitting without a jury.

[29] Very similar statutory provisions were considered by the High Court in Fleming v The Queen and Filippou v The Queen. In relation to a provision in the same form as s 668E, the plurality judgment in Filippou confirmed the High Court’s conclusions in Fleming that each of the three grounds of appeal is capable of application to the verdict of a judge alone and the first limb addresses “attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt”. The plurality in Filippou answered some questions left open in Fleming, including the question whether an appellate court should intervene under the first limb only “if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way…”. The plurality concluded that the appellate court was also obliged to intervene where the finding is otherwise unreasonable in the sense identified in M v The Queen.

[30] Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt. In that exercise, the Court must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen, substituting the word “judge’s” for the word “jury’s” in the passage quoted in [27] of these reasons. (It should be noted that in Filippou, Gageler J considered that it may be open to an appellate court to adopt intermediate findings of fact of the trial judge about which no complaint has been made on appeal without independently assessing the evidence supporting those findings. The respondent did not submit that such an approach is appropriate in this appeal and I would not adopt it.)”[3]

Appeal against conviction

  1. [5]
    The notice of appeal against conviction pleads only that the conviction was “unsafe and unsatisfactory.”  However, in an outline of submissions filed on behalf of the unrepresented appellant, six specific complaints are made about the conduct of the trial.  At the hearing of the appeal the appellant provided a further document that emphasised and elaborated upon these complaints.  Between them, these documents advanced the appellant’s case as far as was reasonably possible, and both have been the subject of detailed consideration.

The evidence

  1. [6]
    Between 2011 and 2014[4] the complainant and her younger brother (B) were living with the appellant and his wife (HW).  Previously they had lived with the complainant’s mother, and her partner (L).
  2. [7]
    On 2 June 2014, when she was in grade 2, the complainant met with a “Student Services officer” at her school.  This officer had a conversation with the complainant about her father:

“… we drew a house and she put herself in the house with her dad and with (HW) and also (B). And I asked her how she feels about her house or living in that house, and she said she feels safe. And I asked her what makes it feel safe and she said, “Dad and (HW) got me away from (L), the mean boy.”[5]

  1. [8]
    The complainant went on to say that L had punched her, and that she had seen him put his “D” into her mother’s “T”.[6]  She was then asked whether L had ever done such a thing to her, to which she said “no”, but “in the next breath said Dad did.”[7]
  2. [9]
    The witness went on:

“I asked her to tell me what happened … and she said, “HW called to me, saying ‘Dad wants you.’ I came downstairs and Dad told HW to go and check on (her brother). Dad went upstairs and got a tissue so it wouldn’t drip.” I asked “Where did he put the tissue?” and she said, “Under his D.” And I said, “What were you doing?” And she said, “Lying down,” and I’ve written here that she said she’d showed her hands were above her head. I asked: Did you have clothes on? She said: Yes, but pulled my bottoms off. He then moved it up and down on me. And I said: Did he put it in your tinkle? and she said: No, just on top.”[8]

  1. [10]
    On 4 June 2014 the complainant met with a child safety officer.[9]  She described, in terms similar to those used two days earlier, an incident in which the appellant had put his “D” on her vagina.[10]  She “spoke about a tissue being used and wee saliva coming out of his ‘D’.”  Nothing more was said at that time.[11]
  2. [11]
    On 7 June 2014 the complainant spoke with a police officer but “no disclosures were made.”[12]
  3. [12]
    On 11 June 2014 the complainant again spoke to the child safety officer and on this occasion, picking up from the conversation on 4 June, the complainant “provided more detail”.  In particular, the officer recalled that the complainant said that there was an occasion “a long time ago”[13] when her father had called her into a spare room and that this was where he had placed his “D” on her vagina and “moved it back and forward.”[14]  She spoke about “wet stuff” on his ‘D’; she referred to this as “wee saliva.”[15]
  4. [13]
    For reasons that are not disclosed, the case did not at that time revert to the police.
  5. [14]
    In ‘about 2015’ the complainant went to live with her mother’s mother, and her partner, described as the complainant’s “step-grandfather”.  In around January 2017 the complainant asked her step-grandfather whether they could have a “serious talk”.  She proceeded to tell him about a time when she was living with her father and, after having been asleep with her brother, she was told by HW to go downstairs to see her father, who was in another room.  The complainant then described to her step-grandfather an incident in which her father told her to get on the bed and take her pants off, following which his penis touched her vagina.  The complainant said that he was “going back and forwards with it” and that he had used tissue paper to deal with the “white fluid” that she saw coming from his penis.[16]
  6. [15]
    Following each of these disclosures, which were admitted as preliminary complaints, there came a point at which the complainant “felt comfortable enough”[17] for her step-grandfather to take her to a police station.  As a result, on 12 April 2017 the complainant participated in an interview that was recorded and tendered in the trial pursuant to section 93A of the Evidence Act 1977 (Qld).  The contents of this interview were summarised by the learned trial judge as follows:

[14] In her interview with the police on 12 April 2017, the complainant said that, when she was six or seven years old, or in year two or three at school, she was at the defendant’s house. The complainant thought it was a weekend and her father, her father’s partner, HW and her brother, B, were at home.

[15] The complainant said that she woke up from an afternoon nap in her bedroom and HW sent her to see the defendant in the spare bedroom. The complainant recalled HW saying “go down to your father” and pointing towards the spare room. She recalled that the spare room was downstairs on the opposite side of the house to the defendant’s and HW’s bedroom. She thought it was the afternoon and recalled that it was still light. HW did not follow her to the spare bedroom.

[16] The defendant was sitting on the bed in the spare bedroom when the complainant arrived. The defendant was clothed. He told her to take off her underwear and pants. The complainant recalls wearing her pyjamas at the time. She took off her clothes as directed, so she was still wearing her shirt. She lay on the bed. The defendant then pulled his “doodle” out of his underwear and shorts and knelt on the bed either in front of or over the top of the complainant. The defendant put his “doodle” on her vagina and starting doing the “humping thing,” which she described as holding his penis in both hands and moving his penis backwards and forward on the complainant’s vagina. (While saying that, she demonstrated by moving her hands up and down with fingers together.) While this was happening, the defendant told her to keep it a secret. The complainant shook her head when asked if the defendant’s penis went inside her vagina. She nodded when asked if it was just on the outside.

[17] The complainant saw some white clear stuff came out of the end of the defendant’s penis. She said the defendant had toilet paper underneath them and wiped his “doodle” with it. The complainant recalled some of the “clear stuff” going onto the tip of her vagina. After the defendant wiped himself with the toilet paper, the complainant thought he put it in a bin that she thought was next to the door to the room.”[18]

  1. [16]
    The appellant was charged and the case proceeded to the point where the complainant was interviewed by a Crown prosecutor on 7 June 2019.[19]  Then, for the first time, she raised the proposition that the incident had involved penetration of her vagina.
  2. [17]
    As a result, there was a further interview between the complainant and police on 23 June 2019.  As summarised by his Honour:

[21] In her interview with the police on 23 June 2019, the complainant said that, after she woke up from a nap, HW told her to go down to the room where the defendant was. When she got there, the defendant closed the door, sat down and told her to take off her underwear and pants. The defendant then told her to lie on the bed, before taking his penis out of his underwear and pants. He put it a “little bit” in her vagina. The complainant appeared to indicate a distance of about one centimetre with her fingers. She said she had a vivid memory of both seeing and feeling it in her vagina.

  1. [18]
    A pre-recording of the complainant’s evidence followed soon after, on 16 July 2019.  When cross-examined about the fact that the interview with the Crown prosecutor was the first occasion upon which she claimed that her vagina was penetrated, the complainant responded that “all those times that I said it was on, I would have meant it was in.”[20]  She agreed that on 7 June she had told the Crown prosecutor that her father’s penis was “soft” at this time, and that the incident was completely isolated, in that nothing of the sort occurred either before or since this incident.
  2. [19]
    The appellant did not testify, but HW was called by the prosecution and in her evidence was material to which the appellant pointed in an attempt to raise a reasonable doubt about his guilt.  Amongst other things, HW categorically ruled out the proposition that the complainant might have worn pyjamas for a daytime nap.  Further, HW rejected the proposition she had ever directed the complainant to go and see her father in a spare room, and indeed asserted that there had never been an occasion upon which she had seen the appellant and the complainant alone in any room in the house during the 3 ½ years in which the complainant lived with them.
  3. [20]
    HW also gave evidence that the complainant had displayed “sexualised behaviour” as soon as she moved in (November 2011).  She allowed that she was a strict disciplinarian with the result that she and the complainant would fight a lot.  Some evidence was given about the location of the “spare room” in which the offence was alleged to have occurred; this founded a submission that it was an unlikely venue for an act of the kind alleged.

Reasons for decision

  1. [21]
    The learned trial judge notionally directed himself in accordance with all of the principles that were said to be applicable to a trial like this.  These included those required when evidence is pre-recorded,[21] when a defendant does not give evidence,[22] when there has been a significant delay in the making of a complaint[23] and when it is suggested there had been a motive to lie.[24]  It is not suggested, nor does it appear that there was any misdirection, or omission to refer to any direction that might have been relevant or necessary.

Grounds of appeal

  1. [22]
    In fact, as noted the appellant has appealed only on the basis that the conviction was “unsafe and unsatisfactory”.  However, in two sets of thorough written submissions, he has identified specific complaints that he advances as “additional grounds”, and detailed consideration has been given to each of these.

Ground A – “inconsistencies”

  1. [23]
    In submissions (oral and written) that seemed to cover everything that could possibly have been said on behalf of the appellant,[25] his trial counsel identified inconsistencies in the chronology of events as reported by the complainant.  However, as noted by the learned trial judge such inconsistencies “are not unusual in the statements and evidence of a seven year old child (at the time of the preliminary complaints) or a ten year old (when she made her first statement to police).”[26]
  2. [24]
    One particular inconsistency identified – and upon which some emphasis was placed – was in the complainant’s evidence about the use of tissues at the point of ejaculation.  His Honour observed that it was “unlikely that, at the time of the offence (if it occurred), the complainant was concentrating on where the defendant obtained the tissue that he used”.  This was, in the circumstances, a fair observation.
  3. [25]
    The other major “inconsistency” identified concerns the issue of penetration, which is considered below.[27]

Ground B – “coercion”

  1. [26]
    At the conclusion of the interview on 12 April 2017, the complainant told police that her grandfather was going to get her a “treat”, in the form of a computer game, for being brave.  Her step-grandfather was cross-examined about this and, whilst allowing that the game in question had been discussed, rejected the proposition that it was any sort of “reward” for her testimony.
  2. [27]
    That is where the evidence was left; it is not possible to infer that there was any level of “coercion” exerted upon the complainant.

Ground C – “motive to lie”

  1. [28]
    The complainant did not like HW.  They fought a lot.[28]  There was evidence that there had been a dispute between the two on the day that the offence was alleged to have been committed.
  2. [29]
    The fact of antipathy between the complainant and stepmother might be accepted, but there is elementary logic in his Honour’s observation that it would be a “very convoluted” way of getting at her stepmother for the complainant to have made up a story – and in particular this story – about her father.[29]

Ground D – The complainant’s expectations

  1. [30]
    It is said that the learned trial judge failed to consider the fact that the complainant had an expectation that her father would be put in jail if she went to the police.
  2. [31]
    It is true that the complainant, when asked why she had finally decided to make a complaint, identified the possibility of her father’s incarceration as a consequence of her action.  It is also true that his Honour did not, in his reasons, dwell upon this aspect of the evidence.
  3. [32]
    His failure to do so must be viewed against the background of the comprehensive submissions that were made by defence counsel.  The complainant’s expectation was not emphasised as one of the reasons[30] why his Honour should acquit, and in context it is difficult to see how, sensibly, it could have been.

Ground E – Lack of corroboration

  1. [33]
    The appellant submits that there was no “corroborating evidence” that could support the claim made by the complainant and that therefore, the state of the evidence did “not allow” the learned trial judge “to independently decide on (her) honesty.”
  2. [34]
    There is no legal requirement for corroboration of a witness such as the complainant, nor was his Honour required by any rule of law or practice to warn himself that it was unsafe to convict the appellant on the basis of her testimony.[31]  Nevertheless, his Honour did, in the course of considering the significance of the delay in making the complaint, direct himself that:

“… It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, I am satisfied beyond reasonable doubt of its truth and accuracy.”[32]

  1. [35]
    His Honour also, in the course of considering the submissions by defence counsel (which included identification of the fact that the complainant was entirely uncorroborated, and which urged the need for great care before placing reliance on it) explicitly stated that he was conscious of these matters and agreed that, as the evidence was entirely uncorroborated, he had to be “especially careful” before he accepted it as true beyond a reasonable doubt.[33]
  2. [36]
    In all of the circumstances there is no point to be made about the lack of corroboration.

Ground F – earlier sexualisation of the complainant

  1. [37]
    The appellant complained that his Honour failed to consider the potential relevance of the fact that the complainant had, whilst living with her mother, witnessed sexual activity between her mother and L.  There was also some evidence that she had, after moving from her mother’s to her father’s, behaved in a sexualised manner with soft toys and with her younger brother.[34]
  2. [38]
    In fact, his Honour made express reference to the submission that this incident might have been relevant to the content of the complaint, but pointed out that it could not explain the detail the complainant was able to give about the appellant’s apparent masturbation of his penis and his ejaculation.  His Honour concluded that the evidence “did not support the proposition that (the complainant) had transposed to her father sexual activities that she (had) seen before.”[35]
  3. [39]
    No error is detectable in his Honour’s treatment of this topic.

Unsafe and unsatisfactory[36]

  1. [40]
    His Honour’s ultimate conclusion as to guilt was reached only after directing himself appropriately and giving careful consideration to all of the issues raised by defence counsel.  Specifically, before convicting the appellant his Honour said:

[114] I have carefully considered all of these issues, particularly the first, fourth, fifth and tenth of the matters raised by Ms Goldie – .... I have not only considered them individually, but also the cumulative effect of the inconsistencies on the complainant’s credit and the reliability of her evidence. I have also reviewed the complainant’s demeanour and her manner of giving evidence, both in the police interviews and in court.”[37]

  1. [41]
    Independently of that assessment, and in accordance with that which was written in Harris, an independent examination of the whole of the evidence has been undertaken with a view to determining whether it was open for his Honour to be satisfied beyond reasonable doubt of the appellant’s guilt.  Whilst the whole of the evidence has been considered when performing that exercise, particular regard has been had to the major inconsistency in the complainant’s evidence about penetration, the purported improbability of the act occurring as described and the isolated nature of the offending alleged.

Penetration

  1. [42]
    The allegation that the appellant’s penis had penetrated the complainant’s vagina is part of the complainant’s second statement to the police which his Honour found, understandably, to be “unreliable in a number of respects.”[38]  It emerged for the first time in 2019.  It was, as his Honour observed, “certainly not a minor inconsistency” and is at the least “surprising”.  That is why, when reviewing the evidence, his Honour “set aside” the complainant’s statements in the latter interview, and those made in court, where they were inconsistent with the accounts she gave in 2017 and earlier.
  2. [43]
    The appeal has been determined on the same basis, although this inconsistency must remain relevant to an assessment of the complainant’s overall reliability.  The variation highlights the difficulties faced by the appellant in testing the complainant’s evidence after such a delay.
  3. [44]
    However, upon review it is open to focus, as his Honour did, upon the statement made in 2017.[39]  The credibility of this statement was buttressed by the series of earlier complaints which were, at least in broad terms, consistent with the actual evidence about the act.  The situation would be different if the appellant had been charged with an offence that involved an element of penetration.  It was not open to accept the reliability of an assertion as to penetration made so long after the event, and in circumstances where earlier accounts did not make any reference to it.  It was, however, open for his Honour to reason as he did and to accept the credit and reliability of the complainant’s other evidence as to the way in which the offence was committed.  This marked inconsistency as to penetration can be viewed properly, as his Honour put it, to be a “product of thinking things through more as (the complainant) got older and perhaps changing memories of the event.”[40]

Improbabilities

  1. [45]
    The appellant’s trial counsel made much of the fact that, in the interview conducted on 7 June 2019, the complainant had said that her father’s penis was “soft” at the time that the offence was committed.  The significance attributed to the description was said to be two-fold.  It made implausible the assertion that there had been any penetration.  It was also said to make implausible the complainant’s description of ejaculation.
  2. [46]
    The interview itself was not put into evidence, and so no other context is available.  “Soft” is a relative term, and it is simply not known whether the complainant was purporting to make a comparison between the tactile sensation experienced on contact with a penis as compared with that caused by another part of the body, such as a skull, or to differentiate between a penis that was flaccid rather than erect.  There is nothing that would allow for a conclusion as to what was actually meant by this isolated remark.  When the absence of context is appreciated, the contentions made under this heading lose some force.  Unless it is known that the complainant understood and was intending to describe a penis that was – and remained at all times – flaccid, her remark cannot begin to impact upon the possibility of penetration or ejaculation.
  3. [47]
    In any case, the implausibility of penetration – by anything, hard or soft – is accepted, even if only because of its absence in earlier accounts.  The related assertion that there was penetration impacts adversely on the complainant’s credibility, but it does not preclude reliance on her earlier evidence.
  4. [48]
    His Honour also allowed that ejaculation could have occurred from a “soft penis”[41] in accepting the complainant’s evidence that ejaculation did occur.  On this topic, regard can be had to the consistency in the preliminary complaints and a “ring of truth” lent to the narrative by the detail provided, as well as the terms – such as “wee saliva” and “white clear stuff” – that were used to describe this aspect of the event.

An isolated incident

  1. [49]
    There was no evidence that the appellant groomed the complainant.  The whole event seems to be completely out of character for him – it was elicited in evidence that he had no previous convictions.  Nor was there any suggestion that anything like the offence charged had occurred again, notwithstanding the fact that the complainant continued to live with the appellant for some time after it occurred.
  2. [50]
    That the offence was such a singular event which was so completely out of character was an important feature of the case and was unsurprisingly relied upon by the appellant’s counsel for the purposes of raising a reasonable doubt about his guilt.
  3. [51]
    It was, however, open to the learned trial judge to form the view, as he did, that the complainant was being truthful and generally reliable in her original accounts about that which the appellant did to her in the spare bedroom.  It should be remembered that the complainant said that the appellant told her to “keep it a secret.”[42]  The fact that the event was isolated does not compel a reasonable doubt.

Conclusion

  1. [52]
    In fact there is nothing in the particular features analysed, nor, in any other part of the evidence that prevented a conclusion of guilt from being drawn.  In all the circumstances, the appellant cannot succeed in demonstrating that it was not open for the learned trial judge to reason as he did towards a conviction.

Sentence

  1. [53]
    There is also an application for leave to appeal against sentence.  Even if the application was successful, an appeal would be of limited utility since the custodial portion of the sentence has already been served.
  2. [54]
    In any case, reliance is placed only on the ground that the sentence is manifestly excessive.  Both before his Honour and on appeal, reference was made to cases such as R v O[43], R v UA[44] and R v RAK.[45]  It was noted by the respondent that those cases were decided prior to the insertion of s 9(10A) of the Penalties and Sentences Act 1992, which means the fact that the offence was a “domestic violence offence” was an aggravating feature of the sentence.
  3. [55]
    It can be accepted that the offence was an isolated one, did not involve penetration or violence or any sort of threat.  The applicant had no criminal history, and a good work record.  Against that background, his own counsel submitted that a sentence of “somewhere around” two years imprisonment would be appropriate.
  4. [56]
    In all of those circumstances, a head sentence of 2 ½ years imprisonment – suspended after 15 months – could not be thought to be manifestly excessive, particularly in circumstances where his Honour spared the applicant the considerable uncertainties that attend any application for a grant of parole.
  5. [57]
    The application for leave to appeal against sentence must be refused.

Footnotes

[1]  The charge was brought pursuant to s 210 of the Criminal Code and contained, as circumstances of aggravation, averments that the complainant was under 12 and that at the time of the offence she was in the appellant’s care.

[2] [2021] QCA 96 at [27]-[30] (footnotes omitted).

[3]  See also, AK v Western Australia (2008) 232 CLR 438 at [106].

[4]  AB 93 line 26.

[5] AB 73 lines 30-35.

[6] A “D” was defined as the thing that “boys have”; “T” was used to describe a vagina.

[7] AB 74 line 5.

[8] AB 74 lines 9-28.

[9]  From the Department of Child Safety, Youth and Women.

[10] AB 73-74 lines 47-1.

[11]  AB 84-85 lines 39-19.

[12]  AB 106 line 38.

[13]  AB 86 line 34.

[14]  AB 86 line 22.

[15] AB 86 line 37.

[16] AB 92 line 35 – AB 93 line 5.

[17]  AB 93 line 20.

[18] AB 122 at [14] – [17] (footnotes omitted).

[19]  AB 45 line 22.

[20]  AB 45 line 26.

[21]  Supreme and District Courts Criminal Directions Benchbook.  10 Child witnesses 93A Statements, AB 121 at [12].

[22]  Ibid, 27 Defendant Not Giving Evidence, where no adverse inference, AB 129 at [65].

[23]  Ibid, 69 Delay in prosecution and significant forensic disadvantage, AB 129 at [66]-[68].

[24]  Ibid, 44 Cross-Examination as to Complainant’s Motive to Lie, AB 129-131 at [69]-[76].

[25] 10 individual reasons for acquittal were identified.  It was, of course the cumulative effect of these factors that was said to be relevant, as expressed in the written submissions placed before the trial judge (AB 220), there were: a. Involvement of HW (credit). b. When the act occurred (reliability). c. The location (credibility). d. Where the tissues were (reliability). e. Whether there was or wasn’t penetration (credibility and reliability). f. Penis was not erect (credibility) .g. Relationship with stepmother (credibility). h. Previous sexualized behaviour (reliability). i. The ‘mechanics’(credibility). j. No grooming.

[26] AB 133 at [91].

[27] See judgment at [42]-[44].

[28] AB 101 line 5.

[29]  AB 130 at [73].

[30]  See footnote 25.

[31]  s 632 Criminal Code.

[32]  AB 120 at [68].

[33]  AB 132 at [84].

[34] AB 102 lines 10-15.

[35]  AB 135 at [104].

[36] In written submissions the appellant addressed the statutory formulation and argued that the verdict was unreasonable or cannot be supported by the evidence.  The appeal has been considered on that basis.

[37] AB 137 at [114].

[38] AB 137 at [116].

[39] See judgment at [15].

[40]  AB 137 at [116].

[41] AB 135 at [101].

[42] AB 122 at [16].

[43]  [2001] QCA 40.

[44]  [2007] QCA 41.

[45]  [2012] QCA 26.

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Editorial Notes

  • Published Case Name:

    R v HZG

  • Shortened Case Name:

    R v HZG

  • MNC:

    [2021] QCA 292

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Bond JA, Callaghan J

  • Date:

    23 Dec 2021

Appeal Status

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