R v DAH

Case [2004] QCA 419

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAH  [2004] QCA 419

PARTIES:

R

v

DAH

(appellant)

FILE NO/S:

CA No 153 of 2004

DC No 496 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2004

JUDGES:

McPherson JA, White and Cullinane JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted by a jury in the District Court of indecent treatment of a child under 12 – whether the learned trial judge erred in his direction to the jury concerning the failure of the appellant to give evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED - where the appellant was convicted by a jury in the District Court of indecent treatment of a child under 12 - whether guilty verdicts were against the weight of the evidence and/or unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON DIRECTION – where complainant was 5 years and 6 months when the complaint of sexual abuse was made – where at the time of the trial the complainant was aged 7 years and 3 months – whether the learned trial judge erred in failing to provide the jury with a strong warning emphasising the need for the jury to scrutinise the complainant’s evidence before convicting

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON DIRECTION – where no particulars of the indecent dealing were given – where evidence of the complainant of a touching of the vagina area – where evidence by a paediatric specialist which suggested partial penetration of the vagina by a blunt force – whether the learned trial judge misdirected and/or failed adequately to direct the jury when dealing with the medical evidence

Criminal Code  1899 (Qld), s 210, s 618, s 632
Criminal Law Amendment Act 1892, s 3
Evidence Act 1977 (Qld), s 15(2)
Evidence Act 1995 (NSW), s 20(2)

Azzopardi v The Queen (2001) 205 CLR 50, considered
Bridge v The Queen (1964) 118 CLR 600, considered
Kops v The Queen [1894] AC 650, considered
M v The Queen (1994) 181 CLR 487, applied
MFA v The Queen (2002) 213 CLR 606, cited
RPS v R (2000) 199 CLR 620, considered
R v…

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Details
AGLC
R v DAH [2004] QCA 419
Case
[2004] QCA 419
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction for indecent treatment of a child under 12 years. The appeal was heard in the Court of Appeal, where the appellant contended that the trial judge had erred in directing the jury regarding his failure to give evidence, and that the verdict was against the weight of the evidence. The appeal also raised the issue of whether the trial judge had misdirected the jury in relation to the complainant's evidence and the medical evidence presented at trial.

The Court of Appeal considered whether the trial judge's direction to the jury concerning the appellant's failure to give evidence was erroneous. The court held that the trial judge had not misdirected the jury, and that the jury's consideration of the summing up as a whole would have led them to properly evaluate the appellant's failure to give evidence. The court also found that the verdict was not against the weight of the evidence or unsafe and unsatisfactory. Furthermore, the court concluded that the trial judge had not erred in failing to provide a strong warning to the jury regarding the need to scrutinise the complainant's evidence, given the complainant's age at the time of the trial. The court found that the trial judge's directions to the jury in relation to the medical evidence were sufficient, and that there was no misdirection or failure to adequately direct the jury.

The appeal was dismissed, and the conviction was upheld. The court found no miscarriage of justice and confirmed the original verdict. The appellant's conviction for indecent treatment of a child under 12 years remained in place.

Orders

Orders of the court

Appeal against conviction dismissed

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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