R v B - [2002] QCA 473

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2002] QCA 473

PARTIES:

R
v
B
(appellant)

FILE NO/S:

CA No 242 of 2002
DC No 170 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED EXTEMPORE ON:

5 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2002

JUDGES:

de Jersey CJ, McMurdo P and Davies JA
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Dismiss the appeal

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant stood trial for five counts of indecent dealing – where acquitted on four counts and appeals against count four as unsafe because it is inconsistent with the other acquittals – where the learned trial Judge directed the jury as to the prospects of differential verdicts – where it fell to the jury to determine the quality of the complainant’s evidence on all counts but where jury must have been satisfied as to the sufficient quality of the evidence only in relation to count four

COUNSEL:

K McGinness for the appellant
M J Copley for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The appellant stood trial on five counts of indecent dealing over the period 1987 to 1995, three in respect of his stepniece A for a period over which she was aged six to 14 years, and two in respect of his stepniece L for a period in which she was aged six to 12 years.

The appellant was acquitted on four counts and convicted on one count in respect of A. At the time of that offence resulting in conviction A was aged 14 to 15 years, or perhaps a bit less than that.

The appeal on the ground that the conviction on Count 4 is unsafe is based on the contention that it is inconsistent with the acquittals.

The conviction concerned events in a caravan at Crystal Waters Plantation Caravan Park. A said that the offence occurred in a caravan not occupied by her family. She gave evidence of a game in which at the appellant's urging she and her cousin L put their hands down his pants to pull out money. She recalled rubbing her hand against his penis as she did so. According to A this was the only occasion on which she participated in this activity and only the three of them were present.

On the other hand her cousin L said that this happened on a number of occasions at various locations and with other cousins present. Those other cousins gave evidence as part of the defence case denying participating in such activity. In generally rejecting L's credibility the jury could in theory, nevertheless, have accepted A's differing account of this event.

The acquittals concerned first an…

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 B

Details

AGLC: R v B [2002] QCA 473
Case: [2002] QCA 473
Decision Date: 5 November 2002

CaseChat Overview and Summary

In this case, the appellant appealed against his conviction on count four of five counts of indecent dealing, having been acquitted on the other four counts. The trial judge had directed the jury on the possibility of a differential verdict. The appellant argued that his acquittal on the other counts was inconsistent with his conviction on count four and that the verdict was unreasonable or insupportable. The court was required to consider whether the jury's verdict on count four was unreasonable or insupportable, given the acquittals on the other counts.

The court considered the trial judge's directions to the jury and noted that it was open to the jury to determine the quality of the complainant's evidence on all counts. The jury was required to decide whether the evidence was sufficient to prove the appellant's guilt beyond reasonable doubt on each count. The court held that the jury must have been satisfied as to the sufficient quality of the evidence only in relation to count four. The court noted that the jury was not required to find the appellant guilty on all counts if they were not satisfied as to the quality of the evidence on some counts. The court concluded that the jury's verdict on count four was open to them and that there was no error in the trial judge's directions to the jury.

The court dismissed the appeal, holding that the verdict on count four was not unreasonable or insupportable. The court noted that the jury was entitled to find the appellant guilty on some counts and not on others, and that the appellant's acquittal on the other counts did not necessarily mean that the evidence on count four was insufficient. The court held that the appeal was accordingly dismissed.

Orders

Orders of the court

Dismiss the appeal

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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CITATION:	R v B [2002] QCA 473
PARTIES:	R v B (appellant)
FILE NO/S:	CA No 242 of 2002 DC No 170 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED EXTEMPORE ON:	5 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2002
JUDGES:	de Jersey CJ, McMurdo P and Davies JA Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Dismiss the appeal
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant stood trial for five counts of indecent dealing – where acquitted on four counts and appeals against count four as unsafe because it is inconsistent with the other acquittals – where the learned trial Judge directed the jury as to the prospects of differential verdicts – where it fell to the jury to determine the quality of the complainant’s evidence on all counts but where jury must have been satisfied as to the sufficient quality of the evidence only in relation to count four
COUNSEL:	K McGinness for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent