R v D - [2002] QCA 445

SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2002] QCA 445

PARTIES:

R
v
D
(appellant)

FILE NO/S:

CA No 189 of 2002
DC No 1351 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2002

JUDGES:

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

ORDERS:

Appeal against conviction and application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – PROOF AND EVIDENCE – where appellant was convicted of indecent dealing of the complainant on the fourth count of an indictment but acquitted of the first three counts – where complainant’s evidence was contradicted by her father’s evidence on the first three counts but not on the fourth – where complainant independently and without prompting recalled the events constituting the fourth count but required prompting for the first three – whether verdict of guilty on the fourth count is unsafe and unsatisfactory due to the verdicts of acquittal on the first three counts

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant was in position of trust in relation to complainant child – where no remorse demonstrated – where no plea of guilty – whether sentence manifestly excessive

Jones v R (1997) 191 CLR 439, distinguished
M v R (1994) 181 CLR 487, considered
Mackenzie v R (1996) 190 CLR 348, followed
R v Gleadhill [2002] QCA 204;CA No 326 of 2001, 14 June 2002, distinguished
R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, distinguished
R v Maddox [1998] QCA 413; CA No 299 of 1998, 4 December 1998, considered
R v Markuleski (2001) 52 NSWLR 82, distinguished
R v NEK [2001] NSWCCA 392; CA No 60771 of 2000, 3 October 2001, followed
R v P [2000] 2 Qd R 401, distinguished
R v S [2002] QCA 167; CA No 307 of 2001, 14 May 2002, distinguished

COUNSEL:

A Rafter for the appellant
C W Heaton for the respondent

SOLICITORS:

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

McMURDO P: I have read the reasons for judgment of Jerrard JA in which the facts and issues are set out. I will only repeat those necessary to explain my reasons.

The appellant contends the jury verdict of guilty on count 4 is unsafe and unsatisfactory because it is inconsistent with the not guilty verdicts on counts 1 to 3. The question is whether, giving due weight to the jury's verdicts, the verdicts are in all the circumstances an affront to logic and common sense: see

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 D

Details

AGLC: R v D [2002] QCA 445
Case: [2002] QCA 445
Decision Date: 25 October 2002

CaseChat Overview and Summary

The appeal against the conviction of the appellant, R, was heard by the High Court of Australia. The appellant was convicted of indecent dealing with a child, the complainant, on the fourth count of an indictment but was acquitted on the first three counts. The complainant's evidence was contradicted by her father on the first three counts, but not on the fourth count. The complainant independently and without prompting recalled the events of the fourth count but required prompting for the first three. The issue for determination was whether the verdict of guilty on the fourth count was unsafe and unsatisfactory due to the verdicts of acquittal on the first three counts.

The High Court held that the verdict of the jury on the fourth count was not necessarily affected by their verdicts on the first three counts. The jury was entitled to accept the complainant's evidence in relation to the fourth count, even if they did not accept her evidence in relation to the first three counts. The court held that the jury was not bound to convict on all counts or acquit on all counts and that the verdicts on the first three counts did not necessarily indicate that the complainant's evidence was unreliable. The court also held that the verdict of the jury on the fourth count was open to them and that the appeal against conviction should be dismissed.

The High Court also considered the appellant's application for leave to appeal against sentence. The appellant was in a position of trust in relation to the complainant child and had shown no remorse. The appellant had also not entered a plea of guilty. The court held that the sentence was not manifestly excessive and that the application for leave to appeal against sentence should be dismissed. The appeal against conviction and the application for leave to appeal against sentence were therefore dismissed.

Orders

Orders of the court

Appeal against conviction and application for leave to appeal against sentence 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.

CITATION:	R v D [2002] QCA 445
PARTIES:	R v D (appellant)
FILE NO/S:	CA No 189 of 2002 DC No 1351 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2002
JUDGES:	McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction and application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – PROOF AND EVIDENCE – where appellant was convicted of indecent dealing of the complainant on the fourth count of an indictment but acquitted of the first three counts – where complainant’s evidence was contradicted by her father’s evidence on the first three counts but not on the fourth – where complainant independently and without prompting recalled the events constituting the fourth count but required prompting for the first three – whether verdict of guilty on the fourth count is unsafe and unsatisfactory due to the verdicts of acquittal on the first three counts CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant was in position of trust in relation to complainant child – where no remorse demonstrated – where no plea of guilty – whether sentence manifestly excessive Jones v R (1997) 191 CLR 439, distinguished M v R (1994) 181 CLR 487, considered Mackenzie v R (1996) 190 CLR 348, followed R v Gleadhill [2002] QCA 204;CA No 326 of 2001, 14 June 2002, distinguished R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, distinguished R v Maddox [1998] QCA 413; CA No 299 of 1998, 4 December 1998, considered R v Markuleski (2001) 52 NSWLR 82, distinguished R v NEK [2001] NSWCCA 392; CA No 60771 of 2000, 3 October 2001, followed R v P [2000] 2 Qd R 401, distinguished R v S [2002] QCA 167; CA No 307 of 2001, 14 May 2002, distinguished
COUNSEL:	A Rafter for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent