R v D - [2001] QCA 256

[2001] QCA 256

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 16 of 2001
DC No 61 of 2000

THE QUEEN

D. Appellant

BRISBANE

DATE 29/06/2001

JUDGMENT

McPHERSON JA: The appellant was tried and convicted on four counts of offences against the complainant, an eight year old girl, who was his step-daughter. Three of those counts were of a sexual nature and the other was one of common assault in the form of a punch to her stomach. This appeal against conviction is based on the amended grounds (1), (2) and (3) that were substituted by leave in the Notice of Appeal.

Essentially all three of those grounds may fairly be reduced to one. It is directed to the trial judge's failure, or so the appellant submits, to direct the jury correctly or, it may be, completely on the use that might be made of the complainant's evidence of uncharged acts of the nature of sexual acts and common assault.

The complainant identified counts (3) and (4) with events that took place on a particular date, namely 12 September 1999. Counts (1) and (2) charged incidents that had occurred on an earlier occasion. There was evidence from the complainant that, while her mother was out, the applicant took her to his bedroom, touched her vagina with his hand (count (1)) and on one possible view of it that is by no means clear, also put his penis in her mouth (count (2)).

Counts (3) and (4) referred to 12 September 1999 and were also said to have taken place when the complainant's mother was out of the house. On that occasion the complainant claimed that the appellant had put his penis in her mouth while she was in the bathroom washing her hands after she had gone to the toilet. It was then that it was said he had punched her in the stomach. The inference, as I interpret the evidence to be, is that he did so because he had, he thought, been unnecessarily asked by the complainant to bring her some toilet paper while she was on the toilet.

The uncharged acts about which complaint is now made on appeal were contained in a tape recorded statement made by the complainant in the course of a police interview that was admitted at the trial under Section 93A of the Evidence Act and which statement or statements were to some extent confirmed by evidence at the trial.

In the Section 93A statement the complainant said that the appellant, whom she called Tigger, "keeps on smacking us and he hit my little brother". She also said he "threw her little brother in the wall and he choked him with the chain". On the matter of the sexual assaults, the complainant said that the applicant put his penis in her mouth and that "he does it every time" by which she explained she meant that when she and her brothers were asleep the appellant woke her up…

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 [2001] QCA 256
Case: [2001] QCA 256
Decision Date: 29/06/2001

CaseChat Overview and Summary

The case of R v D was heard in the Court of Appeal, where the appellant was appealing against his conviction on four counts of offences against his eight-year-old step-daughter. The three counts of sexual offences and one of common assault were based on events occurring on different occasions, and the appeal focused on the trial judge's handling of the complainant's evidence of uncharged acts of a similar nature. The appellant's argument centered on the trial judge's failure to properly instruct the jury on how they could use the evidence of uncharged acts in evaluating the charges against him. This omission, as the appellant argued, potentially led to an unfair trial, as the jury might have inferred a propensity to commit such acts from the uncharged acts presented.

The legal issues before the court involved the proper use of Section 93A of the Evidence Act, which allows the admission of uncharged acts to demonstrate the relationship between the parties or to place the charged offences in a realistic context. The court needed to determine whether the trial judge correctly instructed the jury on the limited use of such evidence and whether this omission constituted a significant error affecting the verdict. The court considered the precedent set in R v W and BRS v The Queen, which emphasised the necessity of directing the jury not to infer a propensity to commit similar acts based on uncharged acts.

The court concluded that the trial judge's omission to provide a specific direction warning the jury against inferring a propensity from the uncharged acts was indeed a significant error. This error, while not necessarily affecting the verdict, deprived the appellant of the chance of acquittal. The court held that the error was fatal to the verdict, and therefore, the appeals against conviction should be allowed, the convictions and verdicts set aside, and a new trial ordered on all counts. The judges agreed on these findings, leading to the orders as indicated by Mr Justice McPherson.

Orders