R v Byron

[2000] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Byron [2000] QCA 177

PARTIES:

R
v
BYRON, Patrick William
(appellant)

FILE NO/S:

CA No 331 of 1999
DC No 847 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2000

JUDGES:

McMurdo P, Moynihan SJA and Atkinson J
Judgment of the Court

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – whether jury was misdirected about the need to carefully scrutinise evidence of child complainant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – whether trial judge misdirected jury concerning evidence of fresh complaint

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether verdict unsafe or unsatisfactory

Suresh v R (1998) 72 ALJR 769, followed
Robinson v R (1999) 165 ALR 226, citied

COUNSEL:

PJ Callaghan for the appellant
PF Rutledge for the respondent

SOLICITORS:

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

1. THE COURT:  The appellant appeals against his conviction for rape and indecent treatment of a child under 12 years.  The issues raised by the amended grounds of appeal are first that the jury was misdirected about the need to carefully scrutinise the complainant’s evidence, secondly that the verdict was unsafe and unsatisfactory and thirdly that the jury were misdirected concerning evidence of fresh complaint.  The issues raised by the grounds are however interconnected.

1. During the course of argument the appellant’s counsel was permitted to argue in effect a further ground of appeal, that is, that the trial judge had failed to direct the jury as to the availability of alternative verdicts of attempted rape or indecent dealing on the rape count.

1. The complainant was a girl born on 15 June 1988 and so was ten years of age on 12 November 1998, when the offences were allegedly committed.  There was evidence that in fact she functioned more as a seven year old than a ten year old from a perspective of pure intelligence although her “social functioning in the environment in which she lived” may have been somewhat better and that she was capable of giving reliable evidence.

1. The complainant lived with her mother, a man called A and her mother’s seven children, at a house in Redcliffe.  The evidence indicates that A was not a man of high intellectual capacity.  The appellant is a disability pensioner with literacy and other difficulties.  The appellant and A had been drinking for part of the day…