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R v Carter

R v Carter

Case [2014] QCA 120 27 May 2014

Appeal

Misdirection or Non-Direction

Miscarriage of Justice

Sentence Manifestly Excessive or Inadequate

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Carter [2014] QCA 120

PARTIES:

R
v
CARTER, John Grant
(applicant/appellant)

FILE NO/S:

CA No 66 of 2014
DC No 62 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

27 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2014

JUDGES:

Gotterson and Morrison JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal and appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the applicant argued that the verdict was unreasonable due to inconsistencies between the complainant’s evidence and other evidence – whether there is doubt in the appellate court – whether jury’s advantage in seeing and hearing evidence is capable of resolving the doubt experienced by the appellate court

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the applicant argued that a verdict of guilty on the assault count was inconsistent with a verdict of not guilty on a count of dangerous operation of a vehicle – whether there was a necessary inconsistency between the two verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was found not guilty of dangerous operation of a motor vehicle and guilty of assault – where the appellant argued that the acquittal on the dangerous operation of a motor vehicle count was a result of the jury rejecting the complainant’s evidence on that count – whether the trial judge had erred in failing to direct the jury that if it entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts of the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where a female child gave evidence in accordance with s 21AK of the Evidence Act 1977 (Qld) – where the female child had a support person under s 21AV of the Evidence Act 1977 (Qld) – where the trial judge referred to the support person as an “adult present” rather than a “support person” – whether that direction was inconsistent with s 21AW and was therefore an error of law

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the trial judge made an error of law in failing to give a direction in compliance with s 21AW of the Evidence Act 1977 (Qld) – where the child’s evidence tended to exculpate the applicant – where there was no…

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 Carter

Details

AGLC: R v Carter [2014] QCA 120
Case: [2014] QCA 120
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case of R v Carter came before the court on appeal against conviction and sentence. The applicant, Carter, was convicted of assault and acquitted of dangerous operation of a motor vehicle. The appeal against conviction raised several issues, including the reasonableness of the verdict, inconsistency between verdicts, and alleged misdirections by the trial judge. Additionally, the appeal against sentence contested whether the sentence was manifestly excessive.

The central legal issues in the appeal against conviction were whether the verdict was unreasonable or insupportable, whether there was an inconsistency between the verdicts on the two counts, and whether the trial judge had erred in not directing the jury about considering the reliability of the complainant's evidence. The appeal against sentence focused on whether the sentence was manifestly excessive in the circumstances of the case.

The court held that the appeal against conviction was dismissed because there was no doubt that the jury, having seen and heard the evidence, could reasonably have reached the verdict of guilty on the assault charge. The inconsistencies in the evidence did not undermine the verdict. Regarding the alleged misdirections, the court found that any error by the trial judge in referring to the support person as an “adult present” was not significant enough to constitute a miscarriage of justice, especially since there was no risk the jury would consider the support person as having influenced the child's evidence. Finally, the appeal against sentence was refused as the sentence was deemed not to be manifestly excessive.

The court’s orders were to dismiss the application for leave to appeal and the appeal against conviction, and to refuse the application for leave to appeal against sentence.

Orders

Orders of the court

1. Application for leave to appeal and appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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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Citations

R v Carter [2014] QCA 120

Most Recent Citation

R v Coss [2015] QCA 33

Cases Citing This Decision

R v Coss [2015] QCA 33
Citation 1 (Para 3)

…ases where the jury had not been directly instructed in terms of s 21AW(2) with respect to the support person measure. [25][2014] QCA 20 at [31]. [26][2014] QCA 120 at [65]-[75]. Discussion…

See all citing cases →

Cases Cited

R v Buckley; R v Ghattas [2014] QCA 98
Citation 1 (Para 1)

…applicant was not a party to those applications and his application should not be decided by reference to the reasoning which prevailed in them. [6][2014] QCA 98.…
R v AAR [2014] QCA 20
Citation 2 (Para 1)

…of violent conduct by the appellant towards the complainant, and there was no serious challenge to either aspect of [her] evidence”. [19][2014] QCA 20. [20][2014] QCA 20, [31]. [21][2013] QCA 334.…
R v Amber [2013] QCA 360
Citation 3 (Para 1)

…of the complainant’s pre-recorded evidence has resulted in an appeal being dismissed on the basis of the proviso in s 668E(1A).” [11] R v Amber [2013] QCA 360.…
R v FAD [2013] QCA 334
Citation 4 (Para 1)

…the complainant, and there was no serious challenge to either aspect of [her] evidence”. [19][2014] QCA 20. [20][2014] QCA 20, [31]. [21][2013] QCA 334.…
R v TAC [2013] QCA 283
Citation 5 (Para 1)

…her (or him) while giving evidence, in a similar way to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v SCB [2013] QCA 276
Citation 6 (Para 1)

…evidence, in a similar way to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v Wells [2013] QCA 289
Citation 7 (Para 1)

…lainant had a support person near her (or him) while giving evidence, in a similar way to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10]…
R v WAT [2013] QCA 251
Citation 8 (Para 1)

…to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v Bisht [2013] QCA 238
Citation 9

…dered R v Amber [2013] QCA 360, cited R v Bisht [2013] QCA 238, considered R v Campbell [2009] QCA 95, referred to R v FAD [2013] QCA 334, considered R v Gray [2011] QCA 362, referred to R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, cited R v Jones; R v Hili [2010] NSWCCA 108, cited R v Markuleski (2001) 52 NSWLR…
R v Drake [2013] QCA 222
Citation 10 (Para 1)

…12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v GAQ [2013] QCA 309
Citation 11 (Para 1)

…on depended, when the complainant had a support person near her (or him) while giving evidence, in a similar way to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]…
R v BCL [2013] QCA 108
Citation 12 (Para 1)

…013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v Gray [2011] QCA 362
Citation 13 (Para 1)

…t many cases, but not all, involve men younger than the applicant. Out of some relevant cases,[29] it is useful to refer to only three. [29] R v Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v…
R v Stone [2010] QCA 157
Citation 14 (Para 1)

…involve men younger than the applicant. Out of some relevant cases,[29] it is useful to refer to only three. [29] R v Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (20…
R v Glyn Morgan Jones; R v Anthony Joseph Luis Hili [2010] NSWCCA 108
Citation 15

…R 17; [2006] QCA 179, cited R v Jones; R v Hili [2010] NSWCCA 108, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited R v PAH [2008] QCA 265, followed R v Salmon; ex parte Attorney-General [2002] QCA 262, referred to R v Stone [2010] QCA 157, c…
R v. Campbell [2009] QCA 95
Citation 16 (Para 1)

…applicant. Out of some relevant cases,[29] it is useful to refer to only three. [29] R v Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (2000) 115 A Crim R 90; R v Moo…
R v Hilton [2009] QCA 12
Citation 17 (Para 1)

…relied on R v Beer: R v Massey [28] and submitted that the other cases relied on by the applicant were not comparable. [26][2004] QCA 377. [27][2009] QCA 12. [28][2002] QCA 397.…
R v PAH [2008] QCA 265
Citation 18

…181 A Crim R 490; [2008] QCA 33, cited R v PAH [2008] QCA 265, followed R v Salmon; ex parte Attorney-General [2002] QCA 262, referred to R v Stone [2010] QCA 157, cited R v WAC [2008] QCA 151, considered COUNSEL: A W Collins for the applicant/appellant P J McCarthy for the respondent SOLICITORS: Whitsunday Law…
R v WAC [2008] QCA 151
Citation 19 (Para 1)

…d be slow to conclude that it was necessary, with the benefit of hindsight, particularly when it was not requested in the first place. [3][2008] QCA 151, [15]-[28]. [4] R v WAC [2008] QCA 151, [34]. [5] R v Ford [2006] QCA 142, [138].…
R v Michael [2008] QCA 33
Citation 20 (Para 1)

…ng the non-compliance and after reviewing the whole of the record, that there has been no substantial miscarriage of justice. [9] [9] R v Michael [2008] QCA 33, (2008) 181 A Crim R 490, 496 [38], which has been frequently cited since, but I note that under s 688E(1A) of the Criminal Code , the statutory requirem…
R v Hellwig [2006] QCA 179
Citation 21

…362, referred to R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, cited R v Jones; R v Hili [2010] NSWCCA 108, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited R v PAH [2008] QCA 265, followed R v Salmon; ex parte Attorney-General [2002] QCA…
R v Ford [2006] QCA 142
Citation 22 (Para 1)

…, particularly when it was not requested in the first place. [3][2008] QCA 151, [15]-[28]. [4] R v WAC [2008] QCA 151, [34]. [5] R v Ford [2006] QCA 142, [138].…
R v McDonald [2005] QCA 383
Citation 23 (Para 1)

…vant cases,[29] it is useful to refer to only three. [29] R v Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (2000) 115 A Crim R 90; R v Moore (unreported, Qld Court of…
R v Abednego [2004] QCA 377
Citation 24 (Para 1)

…cted. The respondent relied on R v Beer: R v Massey [28] and submitted that the other cases relied on by the applicant were not comparable. [26][2004] QCA 377. [27][2009] QCA 12. [28][2002] QCA 397.…
R v Beer and Massey [2002] QCA 397
Citation 25 (Para 1)

…: R v Massey [28] and submitted that the other cases relied on by the applicant were not comparable. [26][2004] QCA 377. [27][2009] QCA 12. [28][2002] QCA 397.…
R v Salmon; ex parte Attorney-General [2002] QCA 262
Citation 26 (Para 1)

…Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (2000) 115 A Crim R 90; R v Moore (unreported, Qld Court of Appeal, CA57 of 1999, 14 May 1999); R v Wilkins (unreported,…
Cheung v The Queen [2001] HCA 67
Citation 27

…AW(2) Criminal Code 1899 (Qld), s 8, s 668E(1A) Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited R v AAR [2014] QCA 20, considered R v Amber [2013] QCA 360, cited R v Bisht [2013] QCA 238, considered R v Campbell [2009] QCA 95, referred to R v FAD [2013] QCA 334, considered R v Gray [2011] QCA 362, referred to R v…
R v Markuleski [2001] NSWCCA 290
Citation 28 (Para 1)

…must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence, relying on R v Markuleski .[2] [2][2001] NSWCCA 290; (2001) 52 NSWLR 82, 121 [186] (Spigelman CJ, Carruthers A-J agreeing); 135 [263]–[265] (Wood CJ at CL); 137 [278]–[280] (Grove J).…
R v Tootoo [2000] QCA 312
Citation 29 (Para 1)

…tone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (2000) 115 A Crim R 90; R v Moore (unreported, Qld Court of Appeal, CA57 of 1999, 14 May 1999); R v Wilkins (unreported, Qld Court of Appeal, CA 182…
House v R [1936] HCA 40
Citation 30

…etion for another, where error has not been shown. That error must be either identifiable or manifest from the sentence imposed: House v The King [1936] HCA 40: (1936) 55 CLR 499. Manifest error is not to be equated with mere inadequacy or excess. But manifest error is fundamentally intuitive. It arises because…

Legislation Cited

Evidence Act 1977 (Qld) 132C(3), 21AV
3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Carter [2014] QCA 120
PARTIES:	R v CARTER, John Grant (applicant/appellant)
FILE NO/S:	CA No 66 of 2014 DC No 62 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	27 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2014
JUDGES:	Gotterson and Morrison JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal and appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the applicant argued that the verdict was unreasonable due to inconsistencies between the complainant’s evidence and other evidence – whether there is doubt in the appellate court – whether jury’s advantage in seeing and hearing evidence is capable of resolving the doubt experienced by the appellate court CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the applicant argued that a verdict of guilty on the assault count was inconsistent with a verdict of not guilty on a count of dangerous operation of a vehicle – whether there was a necessary inconsistency between the two verdicts CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was found not guilty of dangerous operation of a motor vehicle and guilty of assault – where the appellant argued that the acquittal on the dangerous operation of a motor vehicle count was a result of the jury rejecting the complainant’s evidence on that count – whether the trial judge had erred in failing to direct the jury that if it entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts of the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where a female child gave evidence in accordance with s 21AK of the Evidence Act 1977 (Qld) – where the female child had a support person under s 21AV of the Evidence Act 1977 (Qld) – where the trial judge referred to the support person as an “adult present” rather than a “support person” – whether that direction was inconsistent with s 21AW and was therefore an error of law CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the trial judge made an error of law in failing to give a direction in compliance with s 21AW of the Evidence Act 1977 (Qld) – where the child’s evidence tended to exculpate the applicant – where there was no…