R v C

Case [1999] QCA 166
IN THE COURT OF APPEAL [1999] QCA 166
SUPREME COURT OF QUEENSLAND

C.A. No. 476 of 1998

Brisbane

[R v. C]

THE QUEEN

v.

C

(Applicant)

McPherson JA
Davies JA

Fryberg J

Judgment delivered 14 May 1999

Joint reasons for judgment of Davies JA and Fryberg J; separate reasons of

McPherson JA concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTIONS REFUSED.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against convictions for rape and grievous bodily harm - circumstantial evidence of identification - whether jury verdict unsafe and unsatisfactory - whether reasonable doubt exists - whether significant possibility innocent person convicted.

Jones v R (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487

Shepherd v R (1990) 170 CLR 573

Counsel:  Mr S Hamlyn-Harris for the applicant
Mr T Winn for the respondent
Solicitors:  Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date:  16 April 1999

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 14 May 1999

  1. I agree with the joint reasons of Davies JA and Fryberg J for dismissing this appeal. In addition to other matters discussed by their Honours, the movements of the appellant at about the relevant time can be traced back from the time of his arrival in the unit at 20 X Street. A boy like the appellant was seen by Mr Morris going up the stairs to that unit at about or shortly after the time of the offence. Mr Morris said he was moving "pretty fast ... at a fair pace almost at a jog". The complainant herself, in a passage in the videotape set out in the joint reasons of Davies JA and Fryberg J, identified the place where the boy jumped over the fence after the offence was committed. It was within a relatively short distance of the rear of the units at 20 X Street. Taken with the other evidence, I agree that there is no reasonable doubt that the appellant was the boy who committed the offence.

    JOINT REASONS FOR JUDGMENT - DAVIES JA AND FRYBERG J

    Judgment delivered 14 May 1999

  2. The applicant was convicted in the District Court at Ipswich of rape and doing grievous bodily harm to a five year old girl. At the time of the offence, he was fourteen years of age. He now seeks leave to appeal against the convictions. The sole ground of the application is that the convictions were unsafe and unsatisfactory, a ground which, as argued, raised only questions of fact[1].

    [1] The trial judge has not certified the case as one fit for appeal under s.668D(1)(b) of the Criminal Code; presumably there has been no application to him for such a certificate.

  3. The only live issue at the trial and on the application before us was the identification of the applicant as the offender. The victim was unable to identify the applicant as her attacker; indeed, she identified another person from…

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AGLC
R v C [1999] QCA 166
Case
[1999] QCA 166
Decision Date

CaseChat Overview and Summary

The applicant, who was a minor at the time, appeals against his conviction for the rape and grievous bodily harm of a young girl. The appeal was heard in the Court of Appeal, where the sole ground was that the convictions were unsafe and unsatisfactory, raising only questions of fact. The trial judge did not certify the case as one fit for appeal under s.668D(1)(b) of the Criminal Code, and there was no application to him for such a certificate. The primary issue at both trial and appeal was the identification of the applicant as the offender. The victim could not identify the applicant as her attacker and instead identified another person from a photo board. The applicant did not testify and made no admissions to the police. The evidence against the applicant was entirely circumstantial, with no forensic evidence linking the applicant or any other person to the offence.

The court examined the evidence presented at the trial, which included the movements of the applicant around the time of the offence. Mr Morris, a witness, saw the applicant going up the stairs to a unit at 20 X Street at about or shortly after the time of the offence, moving at a fast pace almost at a jog. The victim identified the place where the boy jumped over the fence after the offence, which was within a short distance of the rear of the units at 20 X Street. This, along with other evidence, led the court to conclude that there was no reasonable doubt that the applicant was the boy who committed the offence. The court was satisfied that the evidence established the applicant’s guilt beyond reasonable doubt.

The Court of Appeal dismissed the appeal, upholding the convictions. The reasoning of the trial judge was affirmed, and it was held that the convictions were safe and satisfactory. The court concluded that the circumstantial evidence, when taken as a whole, provided a compelling case against the applicant. The applicant’s movements, the eyewitness account, and the victim’s identification of the location where the offender escaped were sufficient to establish the applicant's identity as the offender. The court found no merit in the argument that the convictions were unsafe and unsatisfactory.

The final orders of the Court of Appeal were that the appeal be dismissed, and the convictions be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JA AND FRYBERG J (dissent)
I agree with the joint reasons of Davies JA and Fryberg J for dismissing this appeal. In addition to other matters discussed by their Honours, the movements of the appellant at about the relevant time can be traced back from the time of his arrival in the unit at 20 X Street. A boy like the appellant was seen by Mr Morris going up the stairs to that unit at about or shortly after the time of the offence. Mr Morris said he was moving "pretty fast ... at a fair pace almost at a jog". The complainant herself, in a passage in the videotape set out in the joint reasons of Davies JA and Fryberg J, identified the place where the boy jumped over the fence after the offence was committed. It was within a relatively short distance of the rear of the units at 20 X Street. Taken with the other evidence, I agree that there is no reasonable doubt that the appellant was the boy who committed the offence. JOINT REASONS FOR JUDGMENT - DAVIES Judgment delivered 14 May 1999 The applicant was convicted in the District Court at Ipswich of rape and doing grievous bodily harm to a five year old girl. At the time of the offence, he was fourteen years of age. He now seeks leave to appeal against the convictions. The sole ground of the application is that the convictions were unsafe and unsatisfactory, a ground which, as argued, raised only questions of fact[1]. [1] The trial judge has not certified the case as one fit for appeal under s.668D(1)(b) of the Criminal Code; presumably there has been no application to him for such a certificate. The only live issue at the trial and on the application before us was the identification of the applicant as the offender. The victim was unable to identify the applicant as her attacker; indeed, she identified another person from a photo board. The applicant did not give evidence and he made no admissions to the police[2]. There was no forensic evidence tending to link the applicant or any other person with the offence. Consequently, the evidence in the case against the applicant was entirely circumstantial. [2] Evidence of a false alibi which he gave police was excluded by the trial judge under s.9E of the Juvenile The circumstances of the rape were undisputed. The victim lived with her mother and brother Jordan, aged four, in a Housing Commission unit at 18 X Street, Booval. At about 8.30am on Friday 16 January 1998 she was playing on her bike in the common area outside the units when a male person took her to the back of the units and raped her. Penetration of her vagina caused a tear that went through to the rectal wall, a tear which, if untreated, was likely to cause rectal prolapse, severe laxity and loss of sensation. There was no doubt that these injuries constituted grievous bodily harm. The place where the offence took place was relatively secluded, although it can hardly be described as isolated. The jury had the benefit of a view; but a reasonable impression of the area can be gained from the photographs and a videotape which were put into evidence. After the attack, the offender escaped over a paling fence into 20 X Street, where another block of units was constructed. The victim was found by her mother in the common area of 18 X Street, crying and with blood on her underpants.

Ratio Decidendi

Legal Principle Established

Established by:

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