R v AX - [2005] QCA 422

SUPREME COURT OF QUEENSLAND

CITATION:

R v AX [2005] QCA 422

PARTIES:

R
v
AX
(appellant)

FILE NO/S:

CA No 176 of 2005
DC No 41 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2005

JUDGES:

Williams and Jerrard JJA and Atkinson 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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – appellant convicted of one count of maintaining a sexual relationship with a child under 16 years and five counts of unlawfully and indecently dealing with that child – whether a warning should have been made by the learned trial judge in his summing up about the dangers inherent in convicting the appellant on the uncorroborated evidence of the complainant

Criminal Code 1899 (Qld), s 632
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(4)

A-G of Hong Kong v Wong Muk-ping [1987] AC 501; 2 All ER 488, considered
Carr v The Queen (1988) 165 CLR 314, cited
R v Johnston (1998) 45 NSWLR 362, considered
R v TN [2005] QCA 160; CA No 230 of 2004, 13 May 2005; (2005) 153 A Crim R 129, considered
Robinson v The Queen (1999) 197 CLR 162, cited

COUNSEL:

M J Byrne QC for the appellant
R G Martin SC for the respondent

SOLICITORS:

McMillan Criminal Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted after a trial on 3 June 2005 of one count of maintaining a sexual relationship with a female child under the age of 16 years who was under his care and five counts of unlawfully and indecently dealing with a female child under the age of 16 who was under his care. The maintaining (count 1) was alleged to have been committed during the period 1 January 1999 to 1 October 2000. The complainant child, M, was the appellant's natural daughter who was born in 1984. The appellant was sentenced to four years imprisonment.

On 6 July 2005 the appellant lodged a notice of appeal containing as the only ground of appeal against conviction that the "verdict of the Jury does not accord with the evidence adduced and admitted at trial". That notice was delivered out of time and on 31 August 2005 this Court ordered that the time for appealing against conviction be extended until 31 August 2005.

In the written outline of submissions forwarded to the Court on behalf of the appellant the grounds of appeal were stated to be:

"(A)The learned trial judge erred in his directions to the jury by failing to or failing to adequately direct the jury;

(B)
The verdict…

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 AX

Details

AGLC: R v AX [2005] QCA 422
Case: [2005] QCA 422
Decision Date: 18 November 2005

CaseChat Overview and Summary

The appellant appealed against his convictions for one count of maintaining a sexual relationship with a child under 16 years and five counts of unlawfully and indecently dealing with that child. The case was heard by the High Court of Australia. The appellant argued that the trial judge should have warned the jury about the inherent dangers in convicting him based solely on the uncorroborated evidence of the complainant. He claimed that the failure to give such a warning constituted a miscarriage of justice.

The legal issue before the court was whether the trial judge should have provided a warning to the jury regarding the dangers of convicting the appellant based on the uncorroborated testimony of the complainant. The court considered the applicable legal principles and authorities to determine whether the absence of such a warning constituted a miscarriage of justice.

The High Court held that the trial judge was not obligated to provide a warning to the jury about the dangers of convicting the appellant on the uncorroborated evidence of the complainant. The court found that the trial judge had provided sufficient instructions to the jury, including the requirement for the jury to consider the credibility of the complainant's evidence and the need for corroboration. The court also noted that the trial judge had highlighted the need for the jury to be cautious in assessing the credibility of the complainant's evidence. The High Court concluded that the absence of a specific warning about the dangers of uncorroborated evidence did not amount to a miscarriage of justice.

The appeal against the conviction was dismissed, and the original convictions were upheld.

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 AX [2005] QCA 422
PARTIES:	R v AX (appellant)
FILE NO/S:	CA No 176 of 2005 DC No 41 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	18 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2005
JUDGES:	Williams and Jerrard JJA and Atkinson 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 – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – appellant convicted of one count of maintaining a sexual relationship with a child under 16 years and five counts of unlawfully and indecently dealing with that child – whether a warning should have been made by the learned trial judge in his summing up about the dangers inherent in convicting the appellant on the uncorroborated evidence of the complainant Criminal Code 1899 (Qld), s 632 Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(4) A-G of Hong Kong v Wong Muk-ping [1987] AC 501; 2 All ER 488, considered Carr v The Queen (1988) 165 CLR 314, cited R v Johnston (1998) 45 NSWLR 362, considered R v TN [2005] QCA 160; CA No 230 of 2004, 13 May 2005; (2005) 153 A Crim R 129, considered Robinson v The Queen (1999) 197 CLR 162, cited
COUNSEL:	M J Byrne QC for the appellant R G Martin SC for the respondent
SOLICITORS:	McMillan Criminal Law for the appellant Director of Public Prosecutions (Queensland) for the respondent