R v Conn; R v Conn; Ex parte

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220

PARTIES:

In CA No 361 of 2016:

R
v
CONN, Joel Robert
(appellant)

In CA No 369 of 2016:

R
v
CONN, Joel Robert
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 361 of 2016
CA No 369 of 2016
DC No 84 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 1 December 2016; Date of Sentence: 6 December 2016 (Durward SC DCJ)

DELIVERED ON:

29 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2017

JUDGES:

Sofronoff P and Fraser JA and North J

ORDERS:

1.   In CA No 361 of 2016:

Appeal dismissed.

2.   In CA No 369 of 2016:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the complainant was a 14 year old boy – where the appellant was an 18 year old man – where the complainant was a basketball referee and the appellant was his supervisor – where the appellant took the complainant to the appellant’s grandmother’s house and engaged in sexual activity with the complainant – where on a later occasion the appellant masturbated the complainant’s penis – where on a later occasion the appellant attempted to make the complainant sodomise him – where on a later occasion the appellant masturbated the complainant’s penis and had the complainant perform oral sex on him – where on a final occasion the appellant procured the complainant to engage in sexual activity with another boy aged 13 – where these incidents resulted in the appellant being charged with five counts of indecent treatment of a child under 16, three counts of permitting himself to be indecently dealt with by a child under 16, one count of attempting to permit a child under 18 to sodomise him and one count of procuring a child under 16 to commit an indecent act – where the appellant was convicted on the counts relating to the first incident and the final incident – where the appellant was acquitted on the counts relating to the other three incidents – where the complainant had only recalled the incidents a number of years after they occurred – where the prosecution submitted that the complainant may have confused the appellant for another sexual partner – whether it was open to the jury to accept recollected evidence – whether it was open to the jury to regard the complainant as credible when he had previously made inconsistent statements regarding a collateral issue – whether it was open to the jury to accept the complainant’s evidence in relation to the first and final incidents but not in relation to the other three incidents

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where…

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Details
Case
[2017] QCA 220
Decision Date

CaseChat Overview and Summary

The Court of Appeal heard appeals in two cases involving the appellant, who had been convicted of indecent treatment of a child under 16, permitting himself to be indecently dealt with by a child under 16, attempting to permit a child under 18 to sodomise him, and procuring a child under 16 to commit an indecent act. The complainant, a 14-year-old boy, was a basketball referee and the appellant was his supervisor. The incidents occurred at various times when the appellant took the complainant to his grandmother's house and engaged in sexual activity with the complainant. The appellant was acquitted on counts relating to three incidents but was convicted on counts relating to the first and final incidents. The complainant had only recalled the incidents a number of years after they occurred.

The court considered whether it was open to the jury to accept recollected evidence and whether it was open to the jury to regard the complainant as credible when he had previously made inconsistent statements regarding a collateral issue. The court held that it was open to the jury to accept the complainant's evidence in relation to the first and final incidents but not in relation to the other three incidents. The court also considered the principles applied by the appellate court to crown appeals and whether the sentencing judge failed to give adequate reasons. The Attorney-General had brought an appeal against sentence, submitting that the sentencing judge made no express finding about exceptional circumstances to justify imposing anything other than a custodial sentence.

The court dismissed the appeal in both cases. The court found that the jury had been properly directed on the issue of recollected evidence and that it was open to them to accept the complainant's evidence in relation to the first and final incidents. The court also found that the sentencing judge had given adequate reasons for imposing a non-custodial sentence and that the sentence was not manifestly inadequate on the basis that there were no exceptional circumstances.

Orders

Orders of the court

1. In CA No 361 of 2016:

Appeal dismissed.

2. In CA No 369 of 2016:

Appeal 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.