R v Dao

[2007] QCA 372

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAO [2007] QCA 372

PARTIES:

R
v
DAO
(appellant)

FILE NO/S:

CA No 47 of 2007
DC No 144 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2007

JUDGES:

Jerrard and Keane JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – PARTICULAR CASES – where the appellant was acquitted by a jury of two counts of unlawfully and indecently dealing a child under 16 years, and on another count of unlawfully permitting himself to be indecently dealt with by the same child – where the appellant was convicted by the jury of a count of having unlawfully had carnal knowledge of a child – where the appellant argued that the verdicts were inconsistent – whether the conviction should be overturned

Mackenzie v The Queen (1997) 190 CLR 348, applied
R v CX[2006] QCA 409; CA No 262 of 2005, 20 October 2006, applied
R v Kirkman (1987) 44 SASR 591, applied

COUNSEL:

The appellant appeared on his own behalf
S Bain for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA:  On 21 February 2007 the appellant was acquitted by a jury of two counts of unlawfully and indecently dealing with CR, a child under 16 years, and on another count of unlawfully permitting himself to be indecently dealt with by the same child.  He was however convicted by the jury of a count of having unlawfully had carnal knowledge of the child CR, and on 21 February 2007 the learned trial judge sentenced the appellant to three years imprisonment.  He has appealed against that conviction, on the ground that the verdict of the jury is unsafe and unsatisfactory, and on the ground of inconsistency between the three acquittals and the conviction. 

1. All four offences were alleged to have happened on 27 December 2003, at Rockhampton.  The evidence against the appellant came very largely from the complainant CR, who was first interviewed by police about the matter in a video recorded interview held on 29 June 2004, at Biloela.  The complainant’s account was that on Christmas Day and Boxing Day 2003 she had visited her aunt’s house in Rockhampton, with her family, and on the Boxing Day night, had “had sex” with the appellant.[1]  She was 12 at the time, and had heard her mother tell the appellant of that fact on Boxing Day morning. 

   [1]At AR 292.

1. The evidence suggested that the first night CR stayed at her aunt’s home, she slept in the appellant’s bedroom, and on the second night in a lounge…