2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 22 July 2016 and in its place order that the appeal to that Court be allowed, the appellant's conviction be quashed and a judgment and verdict of acquittal be entered.
On appeal from the Supreme Court of Queensland
Representation
M J Copley QC for the appellant (instructed by Macrossan & Amiet Solicitors)
M R Byrne QC with S J Farnden for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
GAX v The Queen
Criminal law – Appeal – Verdict unreasonable or insupportable having regard to evidence – Where appellant convicted on one count of aggravated indecent dealing with child and acquitted on two counts of aggravated indecent dealing with same child – Where appellant appealed conviction as unreasonable and inconsistent with acquittals – Whether Court of Appeal made independent assessment of sufficiency and quality of evidence in determining whether verdict unreasonable – Whether verdict unreasonable.
Words and phrases – "unreasonable verdict".
BELL, GAGELER, NETTLE AND GORDON JJ. The appellant was convicted before the District Court of Queensland (Smith DCJ and jury) of aggravated indecent dealing with a child, his lineal descendant[1]. The offence was the third count of three counts charged in the indictment. The appellant was acquitted of the first two counts, which charged aggravated acts of indecent dealing with the same child. The appellant was sentenced to 12 months' imprisonment, the term to be suspended after five months[2].
[1]Criminal Code (Q), s 210.
[2]The suspension of the sentence was conditioned on the appellant not committing any offence punishable by imprisonment within a period of two years.
The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland (McMurdo P, Morrison JA and Atkinson J)[3], contending that the verdict was unreasonable and that it was inconsistent with the verdicts of "not guilty" returned on counts one and two. By majority, the Court of Appeal rejected each ground. McMurdo P, in dissent, held that the evidence did not suffice to prove the appellant's guilt beyond reasonable doubt.
On 16 December 2016 French CJ, Bell and Keane JJ granted the appellant special leave to appeal. The Court of Appeal majority's conclusion that the verdict on count three was not inconsistent with the verdicts on counts one and two is not challenged. In this Court, the appellant contends that the Court of Appeal majority failed to make an independent assessment of the sufficiency and quality of the evidence in determining that it was open to the jury to convict (ground one) and that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
GAX v The Queen [2017] HCA 25
Case
[2017] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from GAX (the appellant) against a decision of the Court of Appeal of the Supreme Court of Queensland. The appellant had been convicted on one count of aggravated indecent dealing with his daughter, but acquitted on two other counts relating to the same child. The central dispute concerned whether the jury's verdict of guilty on the remaining count was unreasonable or insupportable, particularly in light of the acquittals on the other counts.
The legal issues before the High Court were whether the Court of Appeal had failed to conduct an independent assessment of the sufficiency and quality of the evidence when determining the reasonableness of the verdict, and whether the verdict itself was indeed unreasonable. The appellant argued that the Court of Appeal had erred in concluding that the jury could have reasonably convicted him on the third count.
The High Court allowed the appeal, quashing the conviction and entering a verdict of acquittal. Their Honours found that the Court of Appeal had not adequately assessed the evidence in relation to the third count. The complainant's evidence, which was critical to the conviction, described an incident where the appellant's fingers were near her vagina while she was asleep, and her mother entered the room to find her underwear pulled down. However, the complainant could not recall the specific actions of the appellant or how her underwear came to be down. Given the lack of detail and the complainant's inability to recall key aspects of the alleged touching, the High Court concluded that the evidence was not capable of supporting a finding of guilt beyond a reasonable doubt for the offence charged in count three.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 22 July 2016 and in its place order that the appeal to that Court be allowed, the appellant's conviction be quashed and a judgment and verdict of acquittal be entered.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
On 16 December 2016 French CJ, Bell and Keane JJ granted the appellant special leave to appeal. The Court of Appeal majority's conclusion that the verdict on count three was not inconsistent with the verdicts on counts one and two is not challenged. In this Court, the appellant contends that the Court of Appeal majority failed to make an independent assessment of the sufficiency and quality of the evidence in determining that it was open to the jury to convict (ground one) and that their Honours erred in concluding that the verdict was not unreasonable (ground two). As will appear, there is a somewhat arid quality to the controversy concerning the sufficiency of the Court of Appeal majority's analysis of the unreasonable verdict ground in circumstances in which their Honours' conclusion that the evidence was capable of supporting it cannot stand. To explain why that is so, it is necessary to refer in some detail to the evidence adduced in support of count three. The evidence The complainant is the appellant's natural daughter. She was aged just under 13 years at the date of the offence, which was particularised as occurring between 11 and 14 July 2003. Her first complaint concerning the offence was made a little over a decade later. On or about 2 November 2013, the complainant attended at a police station and gave an account of the matters that formed the basis of the offences charged in the indictment. The complainant's evidence adduced in chief, without objection, was that the appellant had "started touching" her from when she was aged six, seven or eight years. The touching had been "unappropriate", but at the time the complainant thought that it was normal. The offence charged in count three was the last occasion of inappropriate touching. The complainant identified this offence as the time "where he was caught". It occurred in the complainant's bedroom, which she shared with her sister, DML. It was the only occasion on which the complainant recalled an incident of inappropriate touching in her bedroom. The material part of the complainant's evidence-in-chief, critical to the determination of the appeal, is set out below:"[M]y mum came in asking – she had pulled the sheets up before – sorry. I used to sleep in the room with my sister. We were in the same room, and she was asleep in her bed. The light had been turned on and Mum had come in. She pulled the blanket up after seeing Dad just hopping out of the bed. Q: So I'll - - - ?A: When she pulled the sheets, my underwear were down at my ankles. Q: How did your underwear get down to your ankles?A: Time, I didn't know. All I knew was my Dad had just hopped off the bed. Q: What was he doing while he was on the bed?A: Well, I was asleep before and ended up finding out what happened, but - - - Q: No, I don't want you to tell us what you ended up finding out? A: No. I was like - - - Q: What do you remember?A: When I was laying there, I could feel hands down near where my underwear were – were supposed to be.Q: Well, what was happening with the hands?A: I can't say. Sorry, I can't say. I don't remember. Q: So you felt the hands down around where your underwear was supposed to be. Whereabouts? Can you say in particular where the hands were?A: His fingers were near my vagina, and I don't remember what was happening. All I remember is his fingers were down there until the light – until we realised that someone was coming down the hallway. Q: How long were his fingers down there?A: I would not be able to recall."
Decision
Reasons for decision
BELL, GAGELER, NETTLE AND GORDON JJ
(dissent)
EDELMAN J
(dissent)