R v AAY - [2016] QCA 300

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAY [2016] QCA 300

PARTIES:

R
v
AAY
(appellant)

FILE NO/S:

CA No 86 of 2016
DC No 2139 of 2015
DC No 540 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 18 March 2016

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2016

JUDGES:

Holmes CJ and Morrison JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with three counts of indecent treatment of a child, under 16, under 12, under care, constituting counts 1, 3 and 4, and one count of rape, constituting count 2 – where the appellant pleaded not guilty at trial on all counts – where the appellant was found guilty, by a jury, of count 1, but was acquitted on counts 2, 3 and 4 – where the appellant was the complainant’s step-father – where the appellant appeals his conviction on the sole ground that it is unreasonable and cannot be supported having regard to the inconsistency between the verdict on count 1 and the acquittals on counts 2, 3 and 4 – whether the verdict is unreasonable and insupportable having regard to all of the evidence

R v GAW[2015] QCA 166, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered

COUNSEL:

T A Ryan for the appellant
G J Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I have had the considerable advantage of reading in draft Morrison JA’s reasons for judgment. I respectfully agree that the jury could reasonably have regarded the complainant’s allegations in her first interview given on 8 October 2010 as reliable, given that they were made much closer in time to the incidents of which she complained and lacked the newly introduced detail of the 2014 statement and interview. The jury might well have regarded the 2014 version as having elements of reconstruction about it.
If the jury did, then, find the 2010 interview, but not the 2014 statement and interview, reliable, it is not surprising that they were not satisfied beyond reasonable doubt of the penetration necessary to found Count 2, rape, because the complainant herself expressed some uncertainty as to what the appellant “done [sic] with his fingers”. Since the complaint which was the subject of Count 4 did not emerge until 2014, the acquittal on it could readily be explained by the jury’s reluctance to act on the 2014 version of events.
What has caused me more difficulty is the issue of whether acquittal on Count 3 is consistence with the jury’s having accepted the complainant’s 2010 account as…

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 AAY

Details

AGLC: R v AAY [2016] QCA 300
Case: [2016] QCA 300
Decision Date: 18 November 2016

CaseChat Overview and Summary

The appellant in this case was found guilty by a jury of one count of indecent treatment of a child under 16, under their care, constituting count 1, but was acquitted on the remaining three counts of indecent treatment of a child under 12, under their care, constituting counts 2, 3 and 4, and one count of rape, constituting count 2. The appellant, who was the complainant’s step-father, appealed his conviction on the sole ground that it was unreasonable and could not be supported having regard to the inconsistency between the verdict on count 1 and the acquittals on counts 2, 3 and 4. The central issue before the court was whether the verdict on count 1 was unreasonable and insupportable given the other verdicts.

In determining whether the verdict was unreasonable, the court applied the test established in R v GAW, which requires that the appellant must demonstrate that the verdicts cannot stand together because no reasonable jury could have arrived at them. The court also considered that if there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. The court found that there was no evidence of inconsistency in the verdicts, and that the jury may have simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. The court also noted that the jury may have taken a merciful view of the facts on one count, a function which has always been open to a jury. The court held that the verdict on count 1 was not unreasonable and insupportable, and dismissed the appeal.

The final order of the court was that the appeal is dismissed. This means that the conviction on count 1 stands, and the appellant will be required to serve a sentence for the offence of indecent treatment of a child under 16, under their care. The acquittals on counts 2, 3 and 4 remain, and the appellant is not required to serve any further sentence for those offences.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Where it is contended that a verdict on one count cannot be supported because it is inconsistent with the verdicts on other counts, the applicable test is that in R v GAW:[3]“[19] …Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.[20]However, respect for the jury’s function results in a reluctance in appellate Courts accepting a submission that verdicts are inconsistent in the relevant sense so that:‘…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the conclusion will generally be accepted. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury’.[21]In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.[22]It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provides examples of relevant inconsistencies; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.”Inconsistent verdicts - the evidence[3][2015] QCA 166, at [19]-[23], per Philippides JA (with whom McMurdo P and Holmes JA (as her Honour then was) agreed.The complainant’s evidence The complainant was born on 25 November 1998. She was interviewed twice for the purpose of producing statements under s 93A of the Evidence Act 1977 (Qld). The first when she was aged about 12, on 8 October 2010, and the second was when she was aged about 16, on 26 October 2014. In July 2014 she produced a handwritten statement which she gave to police. It was also accepted under s 93A of the Evidence Act. The complainant also gave pre-recorded evidence under s 21AK of the Evidence Act, on 18 February 2016 when she was 17.First incident – counts 1 and 2

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AAY [2016] QCA 300
PARTIES:	R v AAY (appellant)
FILE NO/S:	CA No 86 of 2016 DC No 2139 of 2015 DC No 540 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 18 March 2016
DELIVERED ON:	18 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2016
JUDGES:	Holmes CJ and Morrison JA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with three counts of indecent treatment of a child, under 16, under 12, under care, constituting counts 1, 3 and 4, and one count of rape, constituting count 2 – where the appellant pleaded not guilty at trial on all counts – where the appellant was found guilty, by a jury, of count 1, but was acquitted on counts 2, 3 and 4 – where the appellant was the complainant’s step-father – where the appellant appeals his conviction on the sole ground that it is unreasonable and cannot be supported having regard to the inconsistency between the verdict on count 1 and the acquittals on counts 2, 3 and 4 – whether the verdict is unreasonable and insupportable having regard to all of the evidence R v GAW[2015] QCA 166, applied R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered
COUNSEL:	T A Ryan for the appellant G J Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent