R v Ashley - [2005] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ashley [2005] QCA 293

PARTIES:

R
v
ASHLEY, William Roger
(appellant)

FILE NO/S:

CA No 137 of 2005
DC No 2285 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2005

JUDGES:

Williams and Keane JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE - where the appellant was convicted after trial by jury of two counts of indecent treatment of a child under 16 years of age - where complainant was a 13 year old friend of the appellant's daughter - where the offences were alleged to have occurred while the complainant was staying overnight at the appellant's house - where the only evidence that the offences had been committed was the evidence given by the complainant - where there were a number of inconsistencies in the complainant's evidence - where it was submitted on appeal that the trial judge had "minimized" the significance of these inconsistencies in the summing up to the jury - where the trial judge had directed the jury about the dangers of convicting on uncorroborated evidence and had commented that the other evidence in the case was "generally speaking, to the contrary" of the complainant's evidence - whether the trial judge failed to fairly put the inconsistencies in the complainant's evidence before the jury - whether the trial judge ought to have directed the jury that a reasonable doubt with respect to the complainant's evidence on one count ought to be taken into account when making a general assessment of the veracity of the complainant's evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - where the appellant was convicted after trial by jury of two counts of indecent treatment of a child under 16 years of age - where appellant submitted that the evidence of the complainant was so inconsistent that a reasonable jury could not have convicted him - where the appellant did not give evidence to contradict the complainant's account of what had occurred - where the complainant's evidence was consistent with complaints made promptly after the offences were alleged to have taken place - whether the jury must have acted unreasonably in order to convict the appellant

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, applied

R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, distinguished

COUNSEL:

A J Kimmins for appellant

R G Martin SC for respondent

SOLICITORS:

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 Ashley

Details

AGLC: R v Ashley [2005] QCA 293
Case: [2005] QCA 293
Decision Date: 16 August 2005

CaseChat Overview and Summary

The case of R v Ashley involved an appeal by the appellant against his conviction on two counts of indecent treatment of a child under 16 years of age. The complainant was a 13-year-old friend of the appellant's daughter, and the alleged offences occurred while she was staying overnight at the appellant's house. The only evidence supporting the conviction was the testimony of the complainant, which contained several inconsistencies. The appellant argued that the trial judge had not adequately emphasised these inconsistencies to the jury and had failed to direct the jury that a reasonable doubt on one count should be taken into account when assessing the overall credibility of the complainant's evidence.

The court had to decide whether the trial judge had erred in not sufficiently highlighting the inconsistencies in the complainant's testimony to the jury, and whether the judge should have directed the jury that a reasonable doubt on one count should be considered when assessing the overall veracity of the complainant's evidence. Additionally, the court needed to determine if the jury's conviction was unreasonable given the inconsistencies in the complainant's evidence. The court applied the decision from MFA v The Queen, which emphasised the importance of a trial judge ensuring that the jury properly considers inconsistencies in a complainant's evidence. It distinguished the case from R v Markuleski, where the Court of Criminal Appeal found that the jury's verdict was open to them on the evidence presented.

The court found that the trial judge had adequately directed the jury on the need to be cautious with uncorroborated evidence and had highlighted the inconsistencies in the complainant's testimony. The court concluded that the trial judge's directions were sufficient and that the jury was entitled to consider the overall credibility of the complainant's evidence, despite the inconsistencies. The court held that the jury's conviction was not unreasonable, as the complainant's evidence, though inconsistent, was consistent with complaints made promptly after the alleged offences. The appeal against the conviction was therefore dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ashley [2005] QCA 293
PARTIES:	R v ASHLEY, William Roger (appellant)
FILE NO/S:	CA No 137 of 2005 DC No 2285 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2005
JUDGES:	Williams and Keane JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE - where the appellant was convicted after trial by jury of two counts of indecent treatment of a child under 16 years of age - where complainant was a 13 year old friend of the appellant's daughter - where the offences were alleged to have occurred while the complainant was staying overnight at the appellant's house - where the only evidence that the offences had been committed was the evidence given by the complainant - where there were a number of inconsistencies in the complainant's evidence - where it was submitted on appeal that the trial judge had "minimized" the significance of these inconsistencies in the summing up to the jury - where the trial judge had directed the jury about the dangers of convicting on uncorroborated evidence and had commented that the other evidence in the case was "generally speaking, to the contrary" of the complainant's evidence - whether the trial judge failed to fairly put the inconsistencies in the complainant's evidence before the jury - whether the trial judge ought to have directed the jury that a reasonable doubt with respect to the complainant's evidence on one count ought to be taken into account when making a general assessment of the veracity of the complainant's evidence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - where the appellant was convicted after trial by jury of two counts of indecent treatment of a child under 16 years of age - where appellant submitted that the evidence of the complainant was so inconsistent that a reasonable jury could not have convicted him - where the appellant did not give evidence to contradict the complainant's account of what had occurred - where the complainant's evidence was consistent with complaints made promptly after the offences were alleged to have taken place - whether the jury must have acted unreasonably in order to convict the appellant MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, applied R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, distinguished
COUNSEL:	A J Kimmins for appellant R G Martin SC for respondent
SOLICITORS: