R v Draguceanu - [2018] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v Draguceanu [2018] QCA 242

PARTIES:

R
v
DRAGUCEANU, Catalin Sebastian
(appellant)

FILE NO/S:

CA No 69 of 2018
DC No 2473 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 27 March 2018; Date of Sentence: 28 March 2018 (Rafter SC DCJ)

DELIVERED ON:

28 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2018

JUDGES:

Sofronoff P and Boddice and Crow JJ

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – GENERALLY – where the female complainant was a 10 year-old child at the time of the offending – where the female complainant had engaged in swimming games with the appellant and the appellant’s two children – where the female complainant alleged the appellant touched her inappropriately, and indecently exposed her to his penis during those games – where the female complainant gave preliminary complaint evidence to family members, friends, and the Kids Help Line – where the female complainant also gave evidence to police, and at trial via s 93A Evidence Act 1977 (Qld) – where the female complainant was consistent in her statements

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – where the appellant was charged with five counts of indecent treatment of a child under 16, under 12, under care – where counts 1, 2 and 3 related to a female complainant, and the remaining counts to her cousin – where the appellant pleaded not guilty to all counts – where the appellant was convicted by a jury of counts 1 and 2, but not guilty of each of the remaining counts – whether the conviction on count 1 arose as a result of a miscarriage of justice – whether the verdict of guilty on count 1 is unreasonable and cannot be supported having regard to the whole of the evidence – where the particularisation of count 1, as the third occasion of touching, occurred during the trial – whether the appellant was denied an opportunity to fairly test the case against him

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted on counts 1 and 2, but acquitted of count 3 – where count 1 referred to the inappropriate touching of the female complainant, and counts 2 and 3 referred to indecent exposure of the female complainant to the appellant’s penis – whether the verdict of guilty on count 2, but not guilty on count 3 were inconsistent – where time elapsed between the conduct the subject of counts 2 and 3 – whether it was open to the jury to distinguish between those counts

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Bond[2018] QCA 130, applied
R…

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 Draguceanu

Details

AGLC: R v Draguceanu [2018] QCA 242
Case: [2018] QCA 242
Decision Date: 28 September 2018

CaseChat Overview and Summary

Draguceanu was convicted by a jury of two counts of indecent treatment of a child under 16 and under 12, both involving a 10-year-old girl. The appellant was acquitted of three other counts relating to indecent exposure to the same child and indecent treatment of her cousin. Draguceanu appealed against his conviction on count 1, arguing that the verdict was unreasonable and could not be supported by the evidence, and that there were inconsistent verdicts across counts 2 and 3. The appeal hinged on the particularisation of the offences during the trial, the opportunity for the appellant to fairly test the case against him, and the ability of the jury to distinguish between the events underlying counts 2 and 3.

The court examined whether the conviction on count 1 was a miscarriage of justice and if the appellant was denied a fair opportunity to challenge the case against him due to the particularisation of the offence during the trial. The court also assessed whether the verdicts on counts 2 and 3 were inconsistent, considering the temporal gap between the alleged incidents. The court found that the jury's decision, while seemingly inconsistent, was not unreasonable given the evidence and the jury's capacity to differentiate between the incidents.

The court dismissed the appeal against conviction, upholding the jury's verdicts. The reasoning was that the evidence presented was consistent, and despite the apparent inconsistencies in the verdicts, it was open to the jury to distinguish between the events underlying counts 2 and 3. The court concluded that the appellant was not denied a fair opportunity to challenge the case against him, and the conviction on count 1 was supported by the evidence.

No further orders were made by the court.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Draguceanu [2018] QCA 242
PARTIES:	R v DRAGUCEANU, Catalin Sebastian (appellant)
FILE NO/S:	CA No 69 of 2018 DC No 2473 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 27 March 2018; Date of Sentence: 28 March 2018 (Rafter SC DCJ)
DELIVERED ON:	28 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2018
JUDGES:	Sofronoff P and Boddice and Crow JJ
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – GENERALLY – where the female complainant was a 10 year-old child at the time of the offending – where the female complainant had engaged in swimming games with the appellant and the appellant’s two children – where the female complainant alleged the appellant touched her inappropriately, and indecently exposed her to his penis during those games – where the female complainant gave preliminary complaint evidence to family members, friends, and the Kids Help Line – where the female complainant also gave evidence to police, and at trial via s 93A Evidence Act 1977 (Qld) – where the female complainant was consistent in her statements CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – where the appellant was charged with five counts of indecent treatment of a child under 16, under 12, under care – where counts 1, 2 and 3 related to a female complainant, and the remaining counts to her cousin – where the appellant pleaded not guilty to all counts – where the appellant was convicted by a jury of counts 1 and 2, but not guilty of each of the remaining counts – whether the conviction on count 1 arose as a result of a miscarriage of justice – whether the verdict of guilty on count 1 is unreasonable and cannot be supported having regard to the whole of the evidence – where the particularisation of count 1, as the third occasion of touching, occurred during the trial – whether the appellant was denied an opportunity to fairly test the case against him CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted on counts 1 and 2, but acquitted of count 3 – where count 1 referred to the inappropriate touching of the female complainant, and counts 2 and 3 referred to indecent exposure of the female complainant to the appellant’s penis – whether the verdict of guilty on count 2, but not guilty on count 3 were inconsistent – where time elapsed between the conduct the subject of counts 2 and 3 – whether it was open to the jury to distinguish between those counts MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Bond[2018] QCA 130, applied R…