R v AAR

Case [2014] QCA 20 21 February 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v AAR [2014] QCA 20

PARTIES:

R
v
AAR
(appellant/applicant)

FILE NO/S:

CA No 341 of 2012
DC No 548 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

21 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2013

JUDGES:

Fraser JA and Daubney and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed.

2.   Grant application for leave to appeal against sentence.

3.   Allow the appeal against sentence.

4.   Set aside the sentence imposed upon the appellant for counts 4, 6, 7, 8 and 9 and instead sentence the appellant as follows:

a.    For each of counts 6, 7, 8 and 9, order that the appellant be imprisoned for a period of three years and six months.

b.   For count 4, order that the appellant be imprisoned for a period of one year.

c.    The terms of imprisonment are to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of five counts of indecent treatment of a child under 16 years, with the aggravating circumstance that the child was under 12 (counts 4, 6, 7, 8 and 9), and with the additional aggravating circumstance that the child was under the care of the appellant (counts 6, 7, 8 and 9) – where the appellant was the complainant’s paternal step-grandfather – where the appellant was acquitted of four other counts of indecent treatment – where the complainant was aged between five and eleven years old during the period of time the offences occurred – where the appellant contended the verdicts were “unsafe and unsatisfactory” and inconsistent with one another and not supported by the evidence – where the appellant gave evidence in his defence at trial – where the not guilty verdicts on the earlier counts were explicable on the basis of the jury adopting a cautious approach to those offences – where there was no preliminary complaint evidence on any of the offences of which the appellant was convicted, but the complainant’s evidence on those counts was detailed and persuasive – whether the verdicts are irreconcilable – whether it was open to the jury in all the circumstances to find the appellant guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where an order was made under s 21AV of the Evidence Act 1977 (Qld) (“the Act”) for a support person to be present while the complainant and other child witnesses gave evidence – where the trial judge gave a direction in compliance with s 21AW(2) of the Act in relation to the pre‑recording of the complainant’s evidence before it was played at trial – where, after…

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 AAR

Details

AGLC: R v AAR [2014] QCA 20
Case: [2014] QCA 20
Decision Date: 21 February 2014

CaseChat Overview and Summary

In this matter, the appellant appealed against both his conviction and sentence. The appellant had been found guilty of five counts of indecent treatment of a child under 16 years, with the aggravating circumstance that the child was under 12 years, and with the additional aggravating circumstance that the child was under the care of the appellant. The appellant was acquitted of four other counts of indecent treatment. The appellant contended that the verdicts were "unsafe and unsatisfactory" and inconsistent with one another and not supported by the evidence. The appellant also challenged the form of directions given by the trial judge in relation to the presence of a support person for the child witnesses, and the appellant appealed against the sentence imposed, contending that it was manifestly excessive.

The court considered whether the verdicts were irreconcilable or whether it was open to the jury to find the appellant guilty in all the circumstances. The court found that the jury was entitled to accept the complainant’s evidence on the counts of which the appellant was convicted, and the not guilty verdicts on the earlier counts were explicable on the basis of the jury adopting a cautious approach to those offences. The court also considered whether the trial judge’s directions in relation to the presence of a support person for the child witnesses amounted to a substantial miscarriage of justice and found that they did not. The court considered whether the sentence was manifestly excessive, and while the appellant was aged between 53 and 60 at the time of the offending and had limited mitigating circumstances, the court found that the sentence was manifestly excessive.

The court dismissed the appeal against conviction and granted leave to appeal against the sentence. The court allowed the appeal against sentence and set aside the sentence imposed upon the appellant for counts 4, 6, 7, 8 and 9 and instead sentenced the appellant as follows: for each of counts 6, 7, 8 and 9, order that the appellant be imprisoned for a period of three years and six months; for count 4, order that the appellant be imprisoned for a period of one year; and the terms of imprisonment are to be served concurrently.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Grant application for leave to appeal against sentence.

3. Allow the appeal against sentence.

4. Set aside the sentence imposed upon the appellant for counts 4, 6, 7, 8 and 9 and instead sentence the appellant as follows:

a. For each of counts 6, 7, 8 and 9, order that the appellant be imprisoned for a period of three years and six months.

b. For count 4, order that the appellant be imprisoned for a period of one year.

c. The terms of imprisonment are to be served concurrently.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v AAR [2014] QCA 20

Most Recent Citation

R v Carter [2014] QCA 120

Cases Citing This Decision

R v PBR [2025] QCA 120
Citation 1 (Para 11)

…counsel for the applicant, provided us with R v NH [2006] QCA 476 and R v Watson [2017] QCA 82 whilst Ms Sheppard (for the respondent) placed R v AAR [2014] QCA 20 and R v SBM [2009] QCA 115 before us. None of these judgements are truly comparable. The offending in R v NH and R v Watson was significantly less se…
R v SDS [2022] QCA 106
Citation 2 (Para 11)

…R v MCM [104]. The sentencing judge considered that the decisions were not determinative, and they did not set a range of permissible sentences. [102][2014] QCA 20. [103][2015] QCA 111. [104][2017] QCA 187.…
R v App [2021] QCA 162
Citation 3 (Para 1)

…at the absence of the direction could not be cured by any other form of words, and the trial was therefore an irregular trial.[61] [61]Citing R v AAR [2014] QCA 20 at [24], and R v GAQ [2013] QCA 309 at [10].…
R v Stable (a pseudonym) [2020] QCA 270
Citation 4 (Para 12)

…relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v Smart [2018] SASCFC 123
Citation 5 (Para 28)

…efer to the presence of a support person in circumstances where that instruction had been given the previous day in relation to another witness. [11] [2014] QCA 20.…
R v Piper [2015] QCA 129
Citation 6 (Para 4)

…r consideration.[15] That yardstick must also be viewed in the context of more recent authorities of this Court. [14][2008] QCA 200. [15] R v AAR [2014] QCA 20 at [43].…
R v Coss [2015] QCA 33
Citation 7 (Para 3)

…invoked in child witness cases where the jury had not been directly instructed in terms of s 21AW(2) with respect to the support person measure. [25][2014] QCA 20 at [31]. [26][2014] QCA 120 at [65]-[75]. Discussion…
R v RAQ [2014] QCA 261
Citation 8 (Para 1)

…duty to listen carefully to the judge’s directions to the jury and to try to ensure that all necessary directions are given”.[19] [18] R v AAR [2014] QCA 20 at [24], citing R v GAQ [2013] QCA 309, R v DM [2006] QCA 79, R v Michael [2008] QCA 33 and R v BCL [2013] QCA 108. [19] R v Doolan [2014] QCA 246 at [34].…
R v Carter [2014] QCA 120
Citation 9 (Para 1)

…of violent conduct by the appellant towards the complainant, and there was no serious challenge to either aspect of [her] evidence”. [19][2014] QCA 20. [20][2014] QCA 20, [31]. [21][2013] QCA 334.…

See all citing cases →

Cases Cited

Barbaro v The Queen [2014] HCA 2
Citation 1 (Para 1)

…have been impermissible in light of the majority decision in Barbaro v The Queen; Zirilli v The Queen .[8]) [6][2006] QCA 327. [7][2008] QCA 305. [8][2014] HCA 2, particularly at [6] – [7], [39] and [40].…
R v PAP [2013] QCA 288
Citation 2 (Para 1)

…ant submitted that R v PAP ,[12] R v WAA [13] and R v GY [14] demonstrated that the sentence of five years imprisonment was manifestly excessive. [12][2013] QCA 288. [13][2008] QCA 87. [14][2007] QCA 103.…
R v GAQ [2013] QCA 309
Citation 3 (Para 1)

…e upheld only if the court concludes for itself upon a review of the record that there has been no substantial miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (…
R v CBI [2013] QCA 186
Citation 4 (Para 1)

…increased penalties should be anticipated.)[10] [9][2014] HCA 2, particularly at [27], [28], [34], [40], [41] and [43]. [10]See R v CBI [2013] QCA 186 at [19]-[20].…
R v CBG [2013] QCA 44
Citation 5 (Para 1)

…A victim impact statement by the child’s mother spoke of the devastating effects of the offences on the child and his family. [16][2013] QCA 44. [17][1995] QCA 242. [18][2000] QCA 27. [19][2002] QCA 221.…
Michaelides v The Queen [2013] HCA 9
Citation 6

…(2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited R v DM [2006] QCA 79, cited R v GAQ [2013] QCA 309, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited COUNSEL: S L Kissick for the appellan…
R v BCL [2013] QCA 108
Citation 7 (Para 1)

…miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (Qld).…
R v RAD [2008] QCA 305
Citation 8 (Para 1)

…nsel, now appear to have been impermissible in light of the majority decision in Barbaro v The Queen; Zirilli v The Queen .[8]) [6][2006] QCA 327. [7][2008] QCA 305. [8][2014] HCA 2, particularly at [6] – [7], [39] and [40].…
R v WAA [2008] QCA 87
Citation 9 (Para 1)

…v PAP ,[12] R v WAA [13] and R v GY [14] demonstrated that the sentence of five years imprisonment was manifestly excessive. [12][2013] QCA 288. [13][2008] QCA 87. [14][2007] QCA 103.…
R v Michael [2008] QCA 33
Citation 10 (Para 1)

…that there has been no substantial miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (Qld).…
R v GY [2007] QCA 103
Citation 11 (Para 1)

…A [13] and R v GY [14] demonstrated that the sentence of five years imprisonment was manifestly excessive. [12][2013] QCA 288. [13][2008] QCA 87. [14][2007] QCA 103.…
R v PAC [2006] QCA 327
Citation 12 (Para 1)

…that by defence counsel, now appear to have been impermissible in light of the majority decision in Barbaro v The Queen; Zirilli v The Queen .[8]) [6][2006] QCA 327. [7][2008] QCA 305. [8][2014] HCA 2, particularly at [6] – [7], [39] and [40].…
R v DM [2006] QCA 79
Citation 13 (Para 1)

…itself upon a review of the record that there has been no substantial miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (Qld).…
Weiss v The Queen [2005] HCA 81
Citation 14

…R 490; [2008] QCA 33, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited COUNSEL: S L Kissick for the appellant/applicant G J Cummings for the respondent SOLICITORS: R J Cutler Solicitor for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent…
MFA v The Queen [2002] HCA 53
Citation 15

…48; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited R v DM [2006] QCA 79, cited R v GAQ [2013] QCA 309, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited Weiss v The Queen (2005) 224 CLR 300; [2005] H…
R v SAQ [2002] QCA 221
Citation 16 (Para 1)

…he devastating effects of the offences on the child and his family. [16][2013] QCA 44. [17][1995] QCA 242. [18][2000] QCA 27. [19][2002] QCA 221.…
R v R [2000] QCA 27
Citation 17 (Para 1)

…s mother spoke of the devastating effects of the offences on the child and his family. [16][2013] QCA 44. [17][1995] QCA 242. [18][2000] QCA 27. [19][2002] QCA 221.…
AB v The Queen [1999] HCA 46
Citation 18

…ld), s 21AC, s 21AV, s 21AW(2) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] H…
R v CAQ [1999] QCA 197
Citation 19 (Para 1)

…currently. Having regard to the frequency of the sexual misconduct in that case, the sentence in this case is seems severe by comparison. [15][1999] QCA 197.…
Mackenzie v The Queen [1996] HCA 35
Citation 20

…7; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited R v DM [2006] QCA 79, cited R v GAQ [2013] QCA 309, cited R v Michael (2008) 181 A Crim R 490; [2008…
R v Schirmer [1995] QCA 242
Citation 21 (Para 1)

…tement by the child’s mother spoke of the devastating effects of the offences on the child and his family. [16][2013] QCA 44. [17][1995] QCA 242. [18][2000] QCA 27. [19][2002] QCA 221.…
M v the Queen [1994] HCA 63
Citation 22

…68 CLR 79; [1989] HCA 60, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited R v DM [2006] QCA 79, cited R v GAQ […
Longman v The Queen [1989] HCA 60
Citation 23

…Queen [2014] HCA 2, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2…

Legislation Cited

Evidence Act 1977 (Qld) 21AC
2 mentions (from Para 1)

CITATION:	R v AAR [2014] QCA 20
PARTIES:	R v AAR (appellant/applicant)
FILE NO/S:	CA No 341 of 2012 DC No 548 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	21 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2013
JUDGES:	Fraser JA and Daubney and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Grant application for leave to appeal against sentence. 3. Allow the appeal against sentence. 4. Set aside the sentence imposed upon the appellant for counts 4, 6, 7, 8 and 9 and instead sentence the appellant as follows: a. For each of counts 6, 7, 8 and 9, order that the appellant be imprisoned for a period of three years and six months. b. For count 4, order that the appellant be imprisoned for a period of one year. c. The terms of imprisonment are to be served concurrently.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of five counts of indecent treatment of a child under 16 years, with the aggravating circumstance that the child was under 12 (counts 4, 6, 7, 8 and 9), and with the additional aggravating circumstance that the child was under the care of the appellant (counts 6, 7, 8 and 9) – where the appellant was the complainant’s paternal step-grandfather – where the appellant was acquitted of four other counts of indecent treatment – where the complainant was aged between five and eleven years old during the period of time the offences occurred – where the appellant contended the verdicts were “unsafe and unsatisfactory” and inconsistent with one another and not supported by the evidence – where the appellant gave evidence in his defence at trial – where the not guilty verdicts on the earlier counts were explicable on the basis of the jury adopting a cautious approach to those offences – where there was no preliminary complaint evidence on any of the offences of which the appellant was convicted, but the complainant’s evidence on those counts was detailed and persuasive – whether the verdicts are irreconcilable – whether it was open to the jury in all the circumstances to find the appellant guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where an order was made under s 21AV of the Evidence Act 1977 (Qld) (“the Act”) for a support person to be present while the complainant and other child witnesses gave evidence – where the trial judge gave a direction in compliance with s 21AW(2) of the Act in relation to the pre‑recording of the complainant’s evidence before it was played at trial – where, after…