R v DAT

[2009] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAT [2009] QCA 181

PARTIES:

R
v
DAT
(appellant/applicant)

FILE NO/S:

CA No 49 of 2009
DC No 274 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application (Extension Granted)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009

JUDGES:

Holmes and Muir JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction on count 1 allowed;

2.   Verdict and conviction on count 1 set aside;

3.   Verdict of acquittal entered on count 1;

4.   Application for extension of time within which to seek leave to appeal against sentence granted;

5.   Application for leave to appeal against sentence granted;

6.   Sentences imposed on counts 2 to 5 varied to the extent of suspending them after four months, with an operational period of three years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant pleaded guilty to four counts of indecent treatment of a child under 16 with circumstances of aggravation, and not guilty to a count of maintaining an unlawful sexual relationship with the child over a five year period – where appellant convicted of the maintaining offence after judge only trial – where complainant’s evidence suggested improper touching may have occurred on seven occasions over the five year period – where appellant said he may have improperly touched the child up to 10 times – whether evidence showed continuity or “habituality” of sexual contact – whether evidence sufficient to prove beyond reasonable doubt appellant maintained unlawful sexual relationship – whether conviction reasonably open on the evidence

Criminal Code 1899 (Qld), s 229B, s 615C

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Kemp (No. 2) [1998] 2 Qd R 510; [1996] QCA 514, applied
R v S [1999] 2 Qd R 89; [1998] QCA 71, cited

COUNSEL:

S T Courtney for the appellant/applicant
M J Copley SC for the respondent

SOLICITORS:

Butler McDermott Lawyers for the appellant/applicant
Director of Public Prosecutions (Qld) for the respondent

1. HOLMES JA:  The appellant pleaded guilty to four counts of indecent treatment of a child under 16, with the aggravating circumstances that she was under 12, his daughter and under his care.  He went to trial before a judge sitting alone on a further count of maintaining a sexual relationship with the child between June 1996 and June 2001, and was convicted.  He appeals against his conviction on the ground that it is “unreasonable, or can not be supported having regard to the evidence”.[1]

   [1]Criminal Code s 668E.

1. Section 615C of the Criminal Code provides that in a trial by a judge sitting without a jury, the verdict of the judge has the same effect as a jury's verdict, and chapter 67 (which…