R v Chalmers - [2011] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chalmers [2011] QCA 134

PARTIES:

R
v
CHALMERS, Jayson Peter
(appellant)

FILE NO/S:

CA No 29 of 2011
DC No 348 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2011

JUDGES:

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

ORDERS:

1. The appeal is allowed;

2. The convictions are quashed and verdicts of acquittal are entered instead.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the verdicts were unsafe and unsatisfactory on the basis that the child’s accounts given to police officers following the incident and a year later at trial were not reconcilable – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued the trial judge misdirected the jury with respect to the definition of “grievous bodily harm” – whether the complainant was competent to give evidence – whether the evidence was required to be given on oath or unsworn – whether the complainant's evidence was admissible

Criminal Code 1899 (Qld), s 668E(1)
Evidence Act 1977 (Qld), s 9, s 9A, s 9B, Pt 2 Div 4, s 93A

Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
R v BBR [2010] 1 Qd R 546; [2009] QCA 178, applied
R v Broadwater [1996] QCA 450, considered
R v FQ [2008] QCA 68, considered
R v Hopwood[2001] QCA 565, considered

COUNSEL:

J Treviño for the appellant
M Cowan for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Chesterman JA that this appeal against conviction must be allowed.

A review of the whole of the evidence, which is relevantly set out in Chesterman JA's reasons, demonstrates that it was open to the jury to be satisfied beyond reasonable doubt that some improper sexual contact occurred between the appellant and the five year old complainant on 14 November…

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 Chalmers

Details

AGLC: R v Chalmers [2011] QCA 134
Case: [2011] QCA 134
Decision Date: 21 June 2011

CaseChat Overview and Summary

In the case of R v Chalmers, the appellant was convicted in the County Court of Victoria of two counts of unlawfully and indecently dealing with a child under the age of 12 years. The appellant appealed against his convictions, contending that the verdicts were unsafe and unsatisfactory in light of the child’s inconsistent accounts to police officers following the incident and at trial a year later. Additionally, the appellant argued that the trial judge failed to comply with statutory requirements under section 9B of the Evidence Act 1977, and misdirected the jury regarding the definition of “grievous bodily harm.” The appeal was heard in the Court of Appeal, which was tasked with determining whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt, considering the inconsistencies in the child’s testimony and the alleged errors in the trial judge’s instructions.

The Court of Appeal considered the inconsistencies in the child’s accounts and whether they were sufficient to render the verdicts unreasonable. The court also examined whether the trial judge had properly applied section 9B of the Evidence Act, which relates to the admissibility of evidence from a child complainant in certain circumstances. The court further assessed whether the child was competent to give evidence, and whether her evidence should have been given on oath or unsworn. The court concluded that the inconsistencies in the child’s testimony were significant enough to create a reasonable doubt about the appellant’s guilt. The court also found that the trial judge had not adequately followed the statutory requirements and had misdirected the jury on the definition of “grievous bodily harm,” which impacted the fairness of the trial.

As a result of these findings, the Court of Appeal allowed the appeal, quashed the convictions, and entered verdicts of acquittal in place of the original convictions. The court held that the inconsistencies in the child’s evidence and the errors in the trial judge’s directions were substantial enough to undermine the jury’s verdict. The Court of Appeal ordered that the appeal be allowed, the convictions be quashed, and verdicts of acquittal be entered in their place. This decision underscores the importance of ensuring that the trial process is conducted fairly and that the evidence presented is reliable and properly handled.

Orders

Orders of the court

1. The appeal is allowed;

2. The convictions are quashed and verdicts of acquittal are entered instead.

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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CITATION:	R v Chalmers [2011] QCA 134
PARTIES:	R v CHALMERS, Jayson Peter (appellant)
FILE NO/S:	CA No 29 of 2011 DC No 348 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	21 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed; 2. The convictions are quashed and verdicts of acquittal are entered instead.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the verdicts were unsafe and unsatisfactory on the basis that the child’s accounts given to police officers following the incident and a year later at trial were not reconcilable – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued the trial judge misdirected the jury with respect to the definition of “grievous bodily harm” – whether the complainant was competent to give evidence – whether the evidence was required to be given on oath or unsworn – whether the complainant's evidence was admissible Criminal Code 1899 (Qld), s 668E(1) Evidence Act 1977 (Qld), s 9, s 9A, s 9B, Pt 2 Div 4, s 93A Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied R v BBR [2010] 1 Qd R 546; [2009] QCA 178, applied R v Broadwater [1996] QCA 450, considered R v FQ [2008] QCA 68, considered R v Hopwood[2001] QCA 565, considered
COUNSEL:	J Treviño for the appellant M Cowan for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent