R v DCF - [2024] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

R v DCF [2024] QCA 181

PARTIES:

R
v
DCF
(appellant)

FILE NO/S:

CA No 224 of 2023
DC No 400 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 4 November 2023 (Burnett DCJ)

DELIVERED ON:

1 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2024

JUDGES:

Bowskill CJ, Mullins P and North J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the evidence included the recording of a s 93A statement by the complainant during a drive by of the street where the offending occurred and the recording of her photoboard identification of the appellant – where the complainant’s evidence included a physical description of the appellant, identified the appellant as living on the same street as the complainant and identified and described the house in which the offending occurred – where the evidence included photographs of the appellant’s injured left arm during the period particularised for the offending and of the appellant’s splint, sling and bandage that he wore during that period – where the state of the appellant’s left arm was not observed by the complainant who gave evidence that the appellant’s arms looked normal – where the trial judge had summed up the inconsistencies in the complainant’s evidence at length before proceeding to give the specific direction on the dangers of identification evidence – whether there were deficiencies in the directions given by the trial judge on the weaknesses in the identification evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the offending conduct for the three counts was sequential and in quick succession but separately identifiable – where the trial judge gave a sexual interest direction – whether a miscarriage of justice occurred by the giving of the sexual interest direction

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
R v Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, considered

COUNSEL:

J A Greggery KC for the appellant
S L Dennis, with C D Peters, for the respondent

SOLICITORS:

Gnech and Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was convicted after trial in the District Court before a jury of taking a child under 12 for immoral purposes (count 1) and two counts of indecent treatment…

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 DCF

Details

AGLC: R v DCF [2024] QCA 181
Case: [2024] QCA 181
Decision Date: 1 October 2024

CaseChat Overview and Summary

The appellant was convicted in the County Court of Victoria of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12. The appellant appealed to the Court of Appeal, arguing that there were deficiencies in the directions given by the trial judge on the weaknesses in the identification evidence and that a miscarriage of justice occurred by the giving of the sexual interest direction. The Court of Appeal considered whether the trial judge's directions to the jury were sufficient and whether the sexual interest direction was appropriate.

The Court of Appeal found that the trial judge had adequately directed the jury on the weaknesses in the identification evidence, including the complainant's initial inability to identify the appellant and the discrepancies in her description of him. The Court of Appeal held that the trial judge had appropriately drawn the jury's attention to the risks of identification evidence and that the jury was properly directed to consider the reliability of the identification evidence in light of those risks. The Court of Appeal also found that the sexual interest direction was appropriate in the circumstances of the case, as it related to the appellant's interest in the complainant and the circumstances of the offending. The Court of Appeal held that the sexual interest direction did not constitute a miscarriage of justice.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The main issues at the trial were whether the jury could be satisfied beyond reasonable doubt by the complainant’s evidence that the conduct the subject of each count occurred and, if so, whether the complainant’s identification of the appellant as the offender could be safely acted upon as proof of his guilt beyond reasonable doubt.Evidence of identification The complainant stated in her first interview that she did not know the name of the man who took her into his front yard, then into his bed in the bedroom in his house and pulled down her pants. She thought he lived in number 5 in the street in which she was living at the time and that his house had a green gate, flowers on the branch and a top cover at the doorway. (The appellant in his evidence accepted that sometimes the Suzuki vehicle which his wife drove was parked outside under a shade cloth.) The complainant knew what the man looked like. She stated “[h]e got a cut hair around and bit of black on top …Black hair under it, and black eyes”, “[his hair is cut around the] Sides”, “And there’s a bit of hair left overs”, and he was “Skinny” and “white”. At Detective MacRae’s request, the complainant stood up to indicate how tall the man was and, by where she held her hand, Detective MacRae commented that “so he’s quite tall?” and the answer in response was confused, as it was “a little bit tall. He’s kind of short …And kind of tall”. She then said that she “was nearly taller than him”. The following exchange took place between Detective MacRae and the complainant:“SCON MACRAE: Alright. So, [name of complainant], we’re talking about the man. You said he’s quite tall and you showed me on the wall, compared to you.[COMPLAINANT]: I think he’s actually this tall [INDISTINCT] I think he’s actually up to here.SCON MACRAE: Right.[COMPLAINANT]: Or maybe just a little bit more and yeah, he’s up to here.SCON MACRAE: Okay. That’s good. So you weren’t sure --[COMPLAINANT]: [INDISTINCT] --SCON MACRAE: How old he was.[COMPLAINANT]: I was nearly taller than him.SCON MACRAE: Were you?[COMPLAINANT]: I could touch [INDISTINCT] --SCON MACRAE: If you had your arms stretched out, for sure.[COMPLAINANT]: Yeah.” The complainant did not know how old the man was, but identified that he was an adult as he had a wife, because she had seen him lots of times before with his wife. In the second interview, the complainant described the offender as having “black short hair”, “he was skinny” and she thought he had black eyes. She confirmed his skin was “a bit peachy’ish white”. She was asked how old the man was and responded that her grandmother was older than the man and she thought he might be 35. She thought her grandmother was 75 years old. The man had a black Jeep and it was “a short car and it was black and there was a little window at the back” and two or three seats at the back and two seats in the front. She thought it was a small car. When the complainant was with her foster carer, the foster carer took a photo of a car that looked like the man’s car. A photograph of the Suzuki vehicle that was registered in the appellant’s wife’s name was tendered at the trial (exhibit 34). Even though the complainant had said in her evidence that to her the colour of the car was black, Detective MacRae accepted that the Suzuki was registered as grey. The complainant’s grandmother’s evidence at the trial was that she was 70 years old and the trial took place about four years after the period particularised for the offences.

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 DCF [2024] QCA 181
PARTIES:	R v DCF (appellant)
FILE NO/S:	CA No 224 of 2023 DC No 400 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 4 November 2023 (Burnett DCJ)
DELIVERED ON:	1 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2024
JUDGES:	Bowskill CJ, Mullins P and North J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the evidence included the recording of a s 93A statement by the complainant during a drive by of the street where the offending occurred and the recording of her photoboard identification of the appellant – where the complainant’s evidence included a physical description of the appellant, identified the appellant as living on the same street as the complainant and identified and described the house in which the offending occurred – where the evidence included photographs of the appellant’s injured left arm during the period particularised for the offending and of the appellant’s splint, sling and bandage that he wore during that period – where the state of the appellant’s left arm was not observed by the complainant who gave evidence that the appellant’s arms looked normal – where the trial judge had summed up the inconsistencies in the complainant’s evidence at length before proceeding to give the specific direction on the dangers of identification evidence – whether there were deficiencies in the directions given by the trial judge on the weaknesses in the identification evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of taking a child under 12 for immoral purposes and two counts of indecent treatment of a child under 16, under 12 – where the offending conduct for the three counts was sequential and in quick succession but separately identifiable – where the trial judge gave a sexual interest direction – whether a miscarriage of justice occurred by the giving of the sexual interest direction Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited R v Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, considered
COUNSEL:	J A Greggery KC for the appellant S L Dennis, with C D Peters, for the respondent
SOLICITORS:	Gnech and Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent