R v Cab - [2006] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAB [2006] QCA 239

PARTIES:

R
v
CAB
(appellant)

FILE NO/S:

CA No 286 of 2005
DC No 38 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2006

JUDGES:

de Jersey CJ, McMurdo P and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - CRIMES AND OFFENCES BY AND AGAINST CHILDREN - CHILDREN'S COURTS - QUEENSLAND - where male child appellant pleaded not guilty to two counts of raping female child complainant - where trial proceeded in the Children's Court sitting without a jury - where Children's Court judge was satisfied that despite complainant's intoxication her evidence was consistent and therefore found appellant guilty on second count - where appellant contends that guilty verdict is unreasonable and cannot be supported by evidence because complainant was honestly mistaken as a result of her passing in and out of consciousness - whether Children's Court judge was entitled to reject the other boy's evidence and to accept the complainant's evidence

Evidence Act 1977 (Qld), s 93A

COUNSEL:

S L Kissick for appellant (amicus curiae)
P F Rutledge for respondent

SOLICITORS:

No appearance for appellant
Director of Public Prosecutions (Queensland) for respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of the President. I agree that for those reasons, the appeal against conviction should be dismissed.

McMURDO P: The appellant pleaded not guilty on 17 October 2005 in the Children's Court of Queensland at Maroochydore to two counts of raping the complainant on 11 December 2004. The trial proceeded before a Children's Court judge sitting without a jury[1] on 17 October 2005. After a two day trial the judge found the appellant not guilty on the first count but guilty on the second count. The appellant appeals against his conviction contending that the guilty verdict is unreasonable and cannot be supported by the evidence having regard to the possibility of the complainant making an honest mistake.
[1]See s 104(2)(a) Juvenile Justice Act 1992 (Qld).

The evidence

Before directly dealing with the ground of appeal it is necessary to summarize the evidence. The prosecution case was that the first count occurred when the appellant, then aged 15, procured another boy aged 13, DR, to digitally rape the 14 year old female complainant while she slept in a cannabis-induced intoxicated state on the footpath near her home. The second count allegedly occurred when the appellant committed a penile rape upon the complainant very soon afterwards.

The evidence-in-chief of the complainant was contained in a one and a half hour videotaped interview with police taken on 13 December 2004 tendered under s 93A Evidence Act 1977 (Qld).…

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 Cab

Details

AGLC: R v Cab [2006] QCA 239
Case: [2006] QCA 239
Decision Date: 23 June 2006

CaseChat Overview and Summary

The appellant, a male child, faced charges of two counts of raping a female child complainant. The trial was conducted in the Children's Court of Queensland without a jury. The appellant pleaded not guilty to both counts. The trial judge found the appellant guilty on the second count, despite the complainant's intoxication, concluding that her testimony was consistent. The appellant argued that the verdict was unreasonable and not supported by the evidence, suggesting that the complainant's intoxication led to an honest mistake due to her passing in and out of consciousness. The central legal issue was whether the judge was correct in rejecting the evidence of another boy and in accepting the complainant's evidence.

The court examined the nature and reliability of the complainant's evidence, considering her intoxication and the consistency of her testimony. It noted the provisions of the Evidence Act 1977 (Qld), section 93A, which allows for the assessment of a complainant's credibility despite their intoxication. The court held that the judge was entitled to find the complainant's evidence reliable and consistent, despite her intoxication. The judge's decision to reject the evidence of the other boy was also deemed appropriate, as it did not undermine the complainant's testimony. The court found that the judge's decision was reasonable and supported by the evidence presented.

The appeal against the conviction was dismissed, affirming the trial judge's findings. The court upheld the conviction, concluding that the judge's assessment of the complainant's evidence was correct and that the appellant's arguments did not warrant a different outcome. The decision underscored the importance of assessing the consistency and reliability of a complainant's testimony, even in cases of intoxication.

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 CAB [2006] QCA 239
PARTIES:	R v CAB (appellant)
FILE NO/S:	CA No 286 of 2005 DC No 38 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2006
JUDGES:	de Jersey CJ, McMurdo P and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - CRIMES AND OFFENCES BY AND AGAINST CHILDREN - CHILDREN'S COURTS - QUEENSLAND - where male child appellant pleaded not guilty to two counts of raping female child complainant - where trial proceeded in the Children's Court sitting without a jury - where Children's Court judge was satisfied that despite complainant's intoxication her evidence was consistent and therefore found appellant guilty on second count - where appellant contends that guilty verdict is unreasonable and cannot be supported by evidence because complainant was honestly mistaken as a result of her passing in and out of consciousness - whether Children's Court judge was entitled to reject the other boy's evidence and to accept the complainant's evidence Evidence Act 1977 (Qld), s 93A
COUNSEL:	S L Kissick for appellant (amicus curiae) P F Rutledge for respondent
SOLICITORS:	No appearance for appellant Director of Public Prosecutions (Queensland) for respondent