R v E - [1999] QCA 58

[1999] QCA 58

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 370 of 1998

Brisbane

[R v E]

THE QUEEN

Appellant

McMurdo P
Thomas JA
Mackenzie J

Judgment delivered 5 March 1999

Judgment of the Court

APPEAL ALLOWED.
NO NEW TRIAL IS ORDERED.

CATCHWORDS: CRIMINAL LAW - Appeal - indecently dealing with a girl under 16 years with a circumstance of aggravation - 19 year delay in bringing matter to Court.
EVIDENCE - admissibility of uncharged acts.
SUMMING-UP - evidence of good character - sufficiency of directions regarding its use by the jury - "Longman" direction required.
Attwood v The Queen (1960) 102 CLR 353
Simic v The Queen (1980) 144 CLR 319
R v Schmahl [1965] VR 745
R v Thompson [1966] QWN 47
Nilon (1980) 5 A Crim R 385
Longman v The Queen (1989) 168 CLR 79
R v Aristidis unreported CA No.227of 1998, 18 December 1998
Young (1996) 90 A Crim R 80

Counsel:Mr S Durward for the appellant
Mr D Bullock for the respondent

Solicitors:Boulton Cleary & Kern for the appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 12 February 1999

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 March 1999

This is an appeal against conviction in respect of four offences of indecent dealing with a girl under the age of 16 years with a circumstance of aggravation that she was under 14 at the time of the offences. The offences were alleged to have been committed between 1 January 1979 and 31 December 1980 when the appellant was about 50 years of age and the girl five or six.
The offences were alleged to have occurred when she went to his house, which she did frequently. Unparticularised evidence of indecent dealings other than those charged was given by the complainant. She said that the conduct continued for about 1½ to 2 years about once a week.
Count 1 is alleged to have occurred in the kitchen on a weekend. The appellant had sent her brother to the shop to buy a drink. While he was away the appellant began to talk about bellybuttons and asked the complainant if he could touch her there. She agreed and he then put his hand on the area of her vagina, outside her clothing. He then desisted and told her not to say anything. She went home and did not complain about the incident.
Count 2 is alleged to have occurred in the spare bedroom. The allegation is that the appellant touched the complainant, skin on skin, in the vaginal region. He then obtained a shaving brush and rubbed it up and down in the area of her clitoris. He then gave her the brush and asked her to do what he had been doing.
Count 3 is alleged to have been committed in the main bedroom. The allegation is that the appellant felt her vaginal region, first by pushing her knickers to the side and then by…

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 E

Details

AGLC: R v E [1999] QCA 58
Case: [1999] QCA 58
Decision Date: 5 March 1999

CaseChat Overview and Summary

The Court of Appeal in this case was asked to consider an appeal against conviction brought by the appellant, who had been found guilty of four counts of indecently dealing with a girl under the age of 16 years with an aggravating circumstance that she was under 14 at the time of the offences. The legal issues that the Court had to determine included whether the trial judge had erred in admitting certain evidence, whether the summing-up directions to the jury were adequate, and whether the convictions were unsafe and unsatisfactory. The appellant's appeal hinged on several grounds, including the alleged insufficiency of the trial judge's directions regarding the use of evidence of good character and the lack of a proper warning about the difficulties of convicting based on evidence given many years after the events in question.

The Court found that the trial judge had not erred in admitting the evidence of uncharged acts or the evidence of the complainant's brother, as it was relevant to the nature of the relationship between the parties and the context of the charged offences. However, the Court did find fault with the trial judge's directions regarding the use of evidence of good character, stating that the directions were insufficient as they did not cover all aspects of how such evidence might be used by the jury. Furthermore, the Court held that the trial judge had failed to give a proper Longman direction, which is a warning to the jury about the dangers of convicting based on evidence given many years after the events in question, especially when there are objective facts that contradict the complainant's evidence. This failure was significant given the 19-year delay in bringing the matter to court and the substantial evidence led by the defence that contradicted the complainant's evidence.

The Court concluded that the inadequate summing-up meant that the appeal must be allowed. However, given the appellant's age, ill health, and the significant passage of time since the alleged offences, the Court decided that it was undesirable to order a new trial. Instead, the Court allowed the appeal and quashed the convictions.

Orders