R v FAC - [2012] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAC [2012] QCA 213

PARTIES:

R
v
FAC
(appellant)

FILE NO/S:

CA No 222 of 2011
DC No 53 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

17 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2012

JUDGES:

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

ORDERS:

1.   The appeal be allowed;

2.   The verdicts be set aside; and

3.   There be a retrial of all counts on the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE –where appellant convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment, two counts of assault, one count of assault occasioning bodily harm, and five counts of rape – where appellant received head sentence of 11 years imprisonment and other concurrent sentences – where the appellant was in a de facto relationship with the complainant’s foster mother – where appellant submits complainant gave inconsistent accounts to preliminary complaint witnesses – where appellant submits witnesses did not observe significant injuries on the complainant – where the trial judge did not refer to the evidence of the counts when summing up – where the trial judge did not identify specific inconsistencies in his summing up – whether the summing up accurately and fairly put the defence case to the jury – whether verdicts unsafe and unsatisfactory

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
R v Amado-Taylor [2000] 2 Cr App R 189, considered
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, considered

COUNSEL:

The appellant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The appellant was convicted on 14 July 2011 of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, two counts of common assault, one count of assault occasioning bodily harm and five counts of rape. He was sentenced to: 11 years imprisonment for the maintaining offence and four of the rapes; eight years imprisonment for the remaining rape offence; five years imprisonment for the three indecent treatment counts; and to lesser terms of imprisonment for the assault offences. All terms of imprisonment were ordered to be served concurrently. The appellant appeals against his convictions on the ground that the verdicts were unsafe and unsatisfactory “due to the inconsistent accounts given to the preliminary complaint witnesses by the complainant and the absence of any significant injuries being observed by those witnesses”.

The complainant was aged between 11 and 15 at the time of the offences. She was then residing with…

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 FAC

Details

AGLC: R v FAC [2012] QCA 213
Case: [2012] QCA 213
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the matter of R v FAC, the appellant, FAC, was convicted in the Supreme Court of Victoria on various charges, including maintaining a sexual relationship with a child, indecent treatment, assault, assault occasioning bodily harm, and rape. The appellant was in a de facto relationship with the complainant's foster mother at the time of the alleged offences. FAC appealed against his convictions to the Court of Appeal, arguing that the trial judge misdirected the jury by not properly addressing the inconsistencies in the complainant's accounts and by not identifying the significant injuries on the complainant.

The legal issues before the court were whether the summing up accurately and fairly put the defence case to the jury, and whether the verdicts were unsafe and unsatisfactory. The appellant argued that the trial judge failed to refer to the evidence of the counts and failed to identify specific inconsistencies in the summing up. The court had to determine whether these alleged errors in the summing up were material and whether they affected the fairness of the trial and the safety of the verdicts.

The Court of Appeal found that the trial judge's summing up contained significant errors that affected the fairness of the trial. The judge did not adequately address the inconsistencies in the complainant's accounts and did not properly identify the significant injuries on the complainant. The court held that these errors were material and affected the safety of the verdicts. The court considered the summing up as a whole and found that the errors were not cured by any correct directions given by the trial judge. The appeal was allowed, the verdicts were set aside, and a retrial of all counts on the indictment was ordered.

The final orders of the court were that the appeal be allowed, the verdicts be set aside, and there be a retrial of all counts on the indictment. The court found that the errors in the summing up were not cured by any correct directions and that the verdicts were unsafe and unsatisfactory. The appellant was granted a retrial to ensure that the trial was conducted fairly and that the jury had all the necessary information to make an informed decision.

Orders

Orders of the court

1. The appeal be allowed;

2. The verdicts be set aside; and

3. There be a retrial of all counts on the indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v FAC [2012] QCA 213
PARTIES:	R v FAC (appellant)
FILE NO/S:	CA No 222 of 2011 DC No 53 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	17 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2012
JUDGES:	Muir and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed; 2. The verdicts be set aside; and 3. There be a retrial of all counts on the indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE –where appellant convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment, two counts of assault, one count of assault occasioning bodily harm, and five counts of rape – where appellant received head sentence of 11 years imprisonment and other concurrent sentences – where the appellant was in a de facto relationship with the complainant’s foster mother – where appellant submits complainant gave inconsistent accounts to preliminary complaint witnesses – where appellant submits witnesses did not observe significant injuries on the complainant – where the trial judge did not refer to the evidence of the counts when summing up – where the trial judge did not identify specific inconsistencies in his summing up – whether the summing up accurately and fairly put the defence case to the jury – whether verdicts unsafe and unsatisfactory Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered R v Amado-Taylor [2000] 2 Cr App R 189, considered R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, considered
COUNSEL:	The appellant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent