R v F - [2001] QCA 416

[2001] QCA 416

COURT OF APPEAL

McPHERSON JA
JONES J
MULLINS J

CA No 90 of 2001

THE QUEEN

F Appellant

BRISBANE

..DATE 01/10/2001

JUDGMENT

McPHERSON JA: I will ask Justice Mullins to give judgment.

MULLINS J: The appellant is unrepresented. He seeks to appeal against his conviction on 3 April 2001 of two counts of rape and one count of indecent dealing of a child under 16 under care. He was sentenced for the two counts of rape to 10 years imprisonment with a recommendation for release on parole after 4 years and for the other count to a term of imprisonment of 18 months, concurrent with the sentence for the rapes.

The appellant also seeks leave to appeal against sentence. There was a fourth count of indecent dealing on the indictment but there was a directed verdict of not guilty in respect of that count. The grounds of appeal in the notice of appeal in relation to the conviction are that the conviction is unsafe and unsatisfactory and contrary to law.

The complainant was born on 23 April 1986. Her mother subsequently married the appellant. The appellant was therefore the complainant's stepfather. At the time the offences occurred the household comprised the appellant and his wife, the complainant and her two younger brothers.

The evidence given by the complainant relating to the first count of rape was that it was a night in September 1999. The complainant was lying on the double bed in her bedroom. Her mother was out playing cards. The appellant came into the room, placed his hand on her face, lay down on top of her and raped her. The complainant said that during the rape she was hitting the appellant on the face and said she was going to tell mum on him. The complainant said that when the appellant walked out of the room he said, "You'd better not tell your mother."

The complainant did not tell her mother. She gave evidence of violence by the appellant towards her and other members of the household and that she felt frightened of the appellant. The next day the complainant was picked up by her mother's sister to be driven to the football. They stopped at that aunt's house. The complainant's aunt gave evidence that the complainant was crying. She asked what was wrong and the complainant told her that, "Noelly was being rude to her."

The aunt then asked the complainant, "What do you mean by being rude," and the complainant said, "He rooted me." The complainant gave evidence that she did not make a complaint about the rape in September 1999 to her aunt. There was an application during the trial by the appellant's counsel to exclude the evidence of fresh complaint in relation to count 1 from the complainant's aunt because the complainant denied making the complaint.

The learned trial judge refused the application. The fact that the complainant denied making the complaint to the aunt did not necessarily require…

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 F

Details

AGLC: R v F [2001] QCA 416
Case: [2001] QCA 416
Decision Date: 1 October 2001

CaseChat Overview and Summary

The case of R v F before the Court of Appeal in Queensland involved an appellant convicted of two counts of rape and one count of indecent dealing of a child under 16 under care. The appellant, who was the stepfather of the complainant, appealed against his conviction and sentence. The legal issues before the Court were whether the conviction was unsafe and unsatisfactory and contrary to law, and whether the sentence was appropriate given the circumstances of the case. The Court of Appeal found that the conviction was safe and satisfactory, but that the sentence imposed for the rapes was incorrect due to an oversight regarding the operation of the serious violent offender provisions. As a result, the Court set aside the sentence for the rapes and substituted a sentence of 8 years imprisonment.

The Court of Appeal considered the evidence presented at trial, including the complainant's testimony about the offences and the appellant's denial of the charges. The Court found that the jury had been properly directed on the evidence of the complainant's aunt and that the complainant's denial of making a complaint to her aunt did not necessarily require the exclusion of that evidence. The Court also considered the appellant's criminal history and the impact of the offences on the complainant. The Court concluded that the sentence imposed for the rapes was incorrect because the appellant was not eligible for parole until he had served 80 per cent of his sentence, making the trial judge's recommendation for early release on parole meaningless. The Court substituted a sentence of 8 years imprisonment for the rapes, to be served concurrently with the sentence for the indecent dealing.

Orders