R v A

[1992] QCA 456

IN THE COURT OF APPEAL [1992] QCA 455

SUPREME COURT OF QUEENSLAND

C.A. No. 277 of 1992

THE QUEEN

v.

W

Mr Justice Pincus

Mr Justice McPherson

Mr Justice Williams

Judgment of the Court delivered on 18th December, 1992

Appeal against conviction dismissed

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

MINUTE OF ORDER:Appeal against conviction dismissed.

CATCHWORDS:                 Criminal Law - alleged inconsistent verdicts - submitted conviction unsafe and unsatisfactory - McElligott C.A. 101 of 1991 explained - appeal dismissed.

Counsel:P. Nase for appellant

Bullock for Crown

Solicitors:Legal Aid Office for appellant

Director of Prosecutions for Crown

Hearing Date:  4th December, 1992

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

The appellant was charged in the District Court at Southport with three counts of unlawfully and indecently dealing with a girl under the age of 14 years; each charge related to the same girl.  The jury convicted on count 1, was unable to reach a verdict on count 2, and acquitted on count 3.  He has appealed against his conviction on count 1 and the grounds of appeal are stated in the following terms:

1. the jury's verdict is unsafe and unsatisfactory;

2. the jury's verdict is against the evidence and the weight of evidence;

3. the jury's verdict is inconsistent with the verdict in relation to the other two counts on the indictment and therefore cannot stand;

4. the jury's verdict is unsafe in that it depends solely upon acceptance of part of the complainant's evidence whereas the verdict in relation to the other two counts depends upon a failure to accept her evidence.

   Count 1 was based on an incident which occurred when the appellant and the complainant were living in a caravan and annex.  At that time the appellant and the complainant's mother were living in a defacto relationship; the complainant's younger brother and sister also were residing there.  The evidence was that after showering the complainant was lying on her bed under the covers and with only a towel wrapped around her body.  She said that the appellant, who was also only wearing a towel, lay on the bed, placed his hand under the towel around her body and on her bare buttocks, and then moved it towards her vagina.  She then got up from the bed and went to where her brother and sister were.

   Count 2 related to an incident which occurred after the complainant found a vibrator which belonged to her mother.  Her mother was at work at the time.  She took the vibrator to the appellant and asked him what it was.  Her evidence was to the effect that the appellant then told her to go to the bathroom and he would show her.  She said in evidence that while she was sitting on the toilet the appellant put the vibrator against her vagina and turned it on.  She said he asked her, "Does that feel good?".  She replied, "Yes", but then started crying.

   Count 3 related to an incident…