R v A - [1997] QCA 237

[1997] QCA 237

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 158 of 1997

Brisbane

[R. v. A]

THE QUEEN

(Applicant) Appellant

McPherson JA
Williams J
Byrne J

Judgment delivered 8 August 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - Three rapes, assault with intent to commit rape, indecent dealing - appeal against conviction - prior inconsistent statements by complainant that offences did not occur - cross-examination of complainant on friend's allegations of sexual abuse against friend's father - failure of counsel to call witnesses - inconsistencies in complainant's evidence - whether verdict unsafe and unsatisfactory - leave to appeal against sentence - ten years imposed by trial judge - serious offences - position of trust.
Counsel:Appellant appeared on his own behalf.
Mr P Rutledge for the respondent.

Solicitors:Appellant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 24 July 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 August 1997

The appellant, A, was convicted in the District Court at Ipswich on 10 April 1997 of three counts of rape, one count of assault with intent to commit rape, and one count of indecent dealing. In each case the complainant was the appellant's stepdaughter, J, who was born on 15 January 1973. The first count on the indictment, that of rape, was alleged to have occurred in 1983 whilst the parties were residing at Redcliffe; the complainant was then aged ten. The other four counts on the indictment were alleged to have occurred between 1 January 1987 and 31 December 1988 whilst the parties were living at Bundamba; at that time the complainant would have been aged about fourteen. A sentence of 10 years' imprisonment was imposed with respect to each of the rape counts, and 3 years' imprisonment with respect to the other two charges; all sentences were to be served concurrently. The appellant appeals against conviction, and seeks leave to appeal against sentence.

At trial the appellant was represented by counsel, but he conducted the appeal on his own behalf. The formal grounds of appeal were obviously drawn by a lawyer, but they were supplemented by other written material put together by the appellant himself.

At the outset of the trial counsel for the appellant applied for a permanent stay of the indictment. The submission was that proceedings on the indictment would be oppressive and an abuse of process for a number of reasons. Central to the submission was the contention that about ten years prior to trial (the appellant on the hearing of the appeal put it in 1988-9) the complainant girl, her mother, and the appellant found themselves at the Ipswich police station because of some suggestion that the complainant had been sexually molested by the appellant. At the committal (and again at trial) the complainant said she had no recollection of such an event. A statement made by police…

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.

Continue reading R v A

Details

AGLC: R v A [1997] QCA 237
Case: [1997] QCA 237
Decision Date: 8 August 1997

CaseChat Overview and Summary

The appellant, A, was convicted in the District Court at Ipswich of three counts of rape, one count of assault with intent to commit rape, and one count of indecent dealing. The complainant was the appellant's stepdaughter, J, who was born on 15 January 1973. The first count of rape was alleged to have occurred in 1983 when J was aged ten, and the other four counts were alleged to have occurred between 1 January 1987 and 31 December 1988 when J was approximately fourteen. The appellant appeals against conviction, and seeks leave to appeal against sentence.

The court considered several grounds of appeal, including whether the trial judge erred in refusing a permanent stay of the indictment due to the delay between the alleged offences and the trial, and whether the trial judge erred in limiting the scope of cross-examination of the complainant. The court found that the delay did not deprive the appellant of a fair trial, and that the proposed cross-examination was not relevant to the issues in the trial. The court also considered whether the verdicts were unsafe and unsatisfactory due to inconsistencies in the complainant's evidence, but found that the inconsistencies did not undermine the reliability of her evidence.

The court also considered the appellant's application for leave to appeal against sentence, which was a sentence of 10 years' imprisonment for each of the rape counts, and 3 years' imprisonment for the other two charges, all sentences to be served concurrently. The court found that the sentences imposed were well within the range and were not manifestly excessive.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The appellant was ordered to pay costs to the respondent.

Orders