R v CAU - [2010] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAU [2010] QCA 46

PARTIES:

R
v
CAU
(appellant)

FILE NO/S:

CA No 133 of 2009
DC No 171 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2010

JUDGES:

McMurdo P, Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal against conviction is allowed.1.

2.    The convictions on counts 1, 3, 9 and 11 are set aside.

3.    A re-trial is ordered on counts 1, 3, 9 and 11.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – appellant pleaded not guilty to three counts of indecent treatment of a child, three counts of incest, and five counts of sexual assault – appellant was the complainant's brother – appellant was convicted in respect of two counts of indecent treatment of a child under 16 and two counts of incest – late complaint – complainant's evidence inconsistent – whether verdicts are unreasonable and amount to a miscarriage of justice

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – psychologist gave unchallenged evidence – whether evidence was outside the experience and knowledge of the jury – whether the trial judge should have directed the jury that they were not required to accept the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OF POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – prosecution withdrew three counts during trial– whether trial judge erred in failing to direct the jury regarding the use of evidence of those counts

CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY – the complainant made preliminary complaints to friends and grandmother about threats made by the appellant to the complainant – whether complainant's statements about the threats were admissible under s4A Criminal Law (Sexual Offences) Act 1978 (Qld)

CRIMINAL LAW – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – the prosecution at trial led evidence about sexual abuse of the complainant by her father – whether the evidence was admissible

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 9A, s 9C

Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50, cited
HML v The Queen (1996) 190 CLR 348; [2008] HCA 16, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Braye-Jones [1966] Qd R 295, considered
R v WO[2006] QCA 21, cited

COUNSEL:

T Ryan for the appellant
G J Cummings for the respondent

SOLICITORS:

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

McMURDO P: The appellant pleaded not guilty to three counts of indecent treatment of a child under 16…

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 CAU

Details

AGLC: R v CAU [2010] QCA 46
Case: [2010] QCA 46
Decision Date: 12 March 2010

CaseChat Overview and Summary

The appellant was convicted of two counts of indecent treatment of a child under 16 and two counts of incest. The appellant appealed against the conviction, arguing that the verdicts were unreasonable and amounted to a miscarriage of justice due to the late complaint and inconsistencies in the complainant's evidence. The court was required to consider the admissibility of certain evidence, including the complainant's preliminary complaints to friends and grandmother about threats made by the appellant, and the prosecution's evidence of sexual abuse of the complainant by her father. The court also had to examine whether the trial judge erred in failing to direct the jury regarding the use of evidence of counts that were withdrawn by the prosecution during the trial.

The court found that the trial judge had not erred in admitting the evidence of the complainant's preliminary complaints, as they were relevant to the appellant's state of mind and the nature of the relationship between the appellant and the complainant. However, the court found that the trial judge should have directed the jury that they were not required to accept the unchallenged evidence of the psychologist, as it was outside their experience and knowledge. The court also found that the trial judge erred in failing to direct the jury regarding the use of evidence of the counts that were withdrawn by the prosecution during the trial, as it may have influenced the jury's decision.

The court found that the verdicts were unreasonable and amounted to a miscarriage of justice, as the inconsistencies in the complainant's evidence and the late complaint meant that the jury could not have been satisfied beyond reasonable doubt of the appellant's guilt. The court allowed the appeal against conviction, set aside the convictions on counts 1, 3, 9 and 11, and ordered a re-trial on those counts. The court also found that the evidence of the sexual abuse of the complainant by her father was admissible, as it was relevant to the nature of the relationship between the appellant and the complainant.

Orders

Orders of the court

The appeal against conviction is allowed.1.

2. The convictions on counts 1, 3, 9 and 11 are set aside.

3. A re-trial is ordered on counts 1, 3, 9 and 11.

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 CAU [2010] QCA 46
PARTIES:	R v CAU (appellant)
FILE NO/S:	CA No 133 of 2009 DC No 171 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	12 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2010
JUDGES:	McMurdo P, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal against conviction is allowed.1. 2. The convictions on counts 1, 3, 9 and 11 are set aside. 3. A re-trial is ordered on counts 1, 3, 9 and 11.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – appellant pleaded not guilty to three counts of indecent treatment of a child, three counts of incest, and five counts of sexual assault – appellant was the complainant's brother – appellant was convicted in respect of two counts of indecent treatment of a child under 16 and two counts of incest – late complaint – complainant's evidence inconsistent – whether verdicts are unreasonable and amount to a miscarriage of justice CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – psychologist gave unchallenged evidence – whether evidence was outside the experience and knowledge of the jury – whether the trial judge should have directed the jury that they were not required to accept the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OF POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – prosecution withdrew three counts during trial– whether trial judge erred in failing to direct the jury regarding the use of evidence of those counts CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY – the complainant made preliminary complaints to friends and grandmother about threats made by the appellant to the complainant – whether complainant's statements about the threats were admissible under s4A Criminal Law (Sexual Offences) Act 1978 (Qld) CRIMINAL LAW – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – the prosecution at trial led evidence about sexual abuse of the complainant by her father – whether the evidence was admissible Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 9A, s 9C Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50, cited HML v The Queen (1996) 190 CLR 348; [2008] HCA 16, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Braye-Jones [1966] Qd R 295, considered R v WO[2006] QCA 21, cited
COUNSEL:	T Ryan for the appellant G J Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent