R v CR

Case [2021] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

R v CR [2021] QCA 291

PARTIES:

R
v
CR
(appellant)

FILE NO/S:

CA No 256 of 2020
DC No 318 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh –R v CR [2020] QDC 269 – (Chowdhury DCJ)

DELIVERED ON:

23 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2021

JUDGES:

McMurdo and Mullins JJA and Daubney J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner – where there had been delay – where the appellant was convicted of some offences, and acquitted of others, by a judge sitting alone – whether the verdicts were unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where there had been delay between the offending and its report to police – where the trial occurred after the introduction of s 132BA of the Evidence Act 1977 (Qld) – whether the judge gave appropriate directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – where there were some unsatisfactory aspects of the complainant’s evidence – whether the judge gave appropriate directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – whether the judge gave appropriate directions in accordance with Markuleski

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – whether the trial judge gave adequate reasons for conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner – where the prosecution amended the indictment at the close of the third day of the trial – where the period of the offending was said to be at an earlier date – where the appellant’s counsel did not object to the amendment – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner…

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AGLC
R v CR [2021] QCA 291
Case
[2021] QCA 291
Decision Date

CaseChat Overview and Summary

The appellant was convicted of various sexual offences against the daughter of his de facto partner, following a trial by a judge sitting alone. The appeal against conviction was heard by the Court of Appeal, which was required to determine whether the verdicts were unreasonable or insupportable having regard to the evidence, whether there were misdirections or non-directions, and whether the trial judge gave appropriate directions under section 132BA of the Evidence Act 1977 (Qld). The court also considered whether there was a miscarriage of justice, whether the amendment of the indictment amounted to a miscarriage of justice, and whether there was a power to consider fresh evidence.

The court examined whether the judge's verdict was unreasonable or could not be supported, whether there had been a misdirection or non-direction, and whether the judge had given appropriate directions in accordance with Markuleski. The court found that the trial judge had appropriately directed the jury on the unsatisfactory aspects of the complainant's evidence and had considered the delay in reporting the offences. The court also found that the judge had given adequate reasons for conviction and that the amendment of the indictment did not amount to a miscarriage of justice. However, the court held that the appellant's argument regarding the fresh evidence did not meet the threshold for considering such evidence.

The court dismissed the appeal and upheld the appellant's convictions. The judge's verdicts were found to be reasonable and supported by the evidence, and there were no misdirections or non-directions that would warrant a new trial. The trial judge had given appropriate directions and provided adequate reasons for conviction, and the amendment of the indictment did not amount to a miscarriage of justice. The court did not consider the fresh evidence as it did not meet the threshold for such consideration.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant was tried by a judge alone, pursuant to s 615C of the Criminal Code (Qld), which is as follows:“615C Judge’s verdict and judgment(1)In a trial by a judge sitting without a jury—(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.(2)Without limiting subsection (1), chapter 67 applies with all necessary changes in relation to a person to be tried, being tried, or tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.(3)The judgment of the judge in a trial by a judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.(4)The validity of the proceeding is not affected by a trial judge’s failure to comply with subsection (3).” The application of chapter 67 of the Code requires this Court to determine an appeal against conviction, according to the grounds of appeal prescribed by s 666E(1). In Filippou v The Queen,[9] the High Court explained the application of the common form of criminal appeal provisions to a trial by a judge alone. French CJ, Bell, Keane and Nettle JJ there said:[10][9](2015) 256 CLR 47; [2015] HCA 29 (“Filippou”).[10](2015) 256 CLR 47 at 53-54; [2015] HCA 29 at [9], [11], [12].“[9]As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.…[11]Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.[12]Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:“It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.””(Footnotes omitted.)

Ratio Decidendi

Legal Principle Established

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