R v FAD - [2013] QCA 334

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAD [2013] QCA 334

PARTIES:

R
v
FAD
(appellant)

FILE NO/S:

CA No 51 of 2013
DC No 39 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

8 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2013

JUDGES:

Fraser and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by majority verdicts of one count of maintaining an unlawful sexual relationship with a child under 16 years (count 1), one count of indecent treatment of a child with the circumstance of aggravation that the child was under care (count 2) and one count of sodomy of a child under care (count 3) – where the appellant contended that the verdicts were “unsafe and unsatisfactory in the circumstances” and “inconsistent with the weight of the evidence” – where the respondent argued the complainant’s account was plausible and not contradicted by sworn evidence – where the inconsistencies present were not so significant as to require the jury to doubt the complainant’s credibility and reliability – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where an order was made under s 21AV of the Evidence Act 1977 (Qld) (‘the Act’) for a support person to be present while the complainant’s sister (‘A’) gave pre-recorded evidence – where the trial judge’s directions complied with s 21AW(2) of the Act in relation to the taking of A’s evidence by way of pre-recording but did not refer to the presence of a support person – where the support person was not visible at any stage during the recording – where the respondent contended that the wording used by the trial judge covered all aspects of the presentation of the evidence – where the respondent otherwise submitted that the error was not one amounting to a substantial miscarriage of justice – where A did not give evidence of the offences – where A’s evidence was relevant as preliminary complaint evidence and as evidence of violent conduct by the appellant towards the complainant – whether the trial judge erred – whether trial judge’s omission resulted in a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the complainant disclosed during the trial an occasion of sexual misconduct by the appellant against him outside the charged period – where the prosecutor had disclosed this offending to defence counsel the day before the trial commenced – where defence…

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 FAD

Details

AGLC: R v FAD [2013] QCA 334
Case: [2013] QCA 334
Decision Date: 8 November 2013

CaseChat Overview and Summary

In the case of R v FAD, the appellant appealed against his convictions for maintaining an unlawful sexual relationship with a child under 16 years, indecent treatment of a child under care, and sodomy of a child under care. The appellant contended that the jury's verdicts were unreasonable and inconsistent with the evidence. The respondent argued that the complainant's account was credible and reliable, and that the inconsistencies present did not undermine her credibility.

The court examined whether the trial judge's directions to the jury were adequate, whether the admission of evidence regarding the appellant's misconduct outside the charged period was appropriate, and whether any other irregularities during the trial amounted to a miscarriage of justice. The court found that the trial judge's directions, while not explicitly referring to the presence of a support person, covered all aspects of the evidence presentation, and that the omission did not result in a substantial miscarriage of justice. The court also found that the evidence of the appellant's misconduct outside the charged period was admissible for limited purposes and that its admission did not result in a miscarriage of justice. The court further determined that the trial judge's re-directions to the jury were appropriate and that any other irregularities during the trial did not amount to a miscarriage of justice.

The court concluded that the jury's verdicts were not unreasonable or inconsistent with the evidence, and that the appellant's appeal should be dismissed. The convictions were upheld, and the appeal was dismissed.

ORDERS:
Appeal 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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v FAD [2013] QCA 334
PARTIES:	R v FAD (appellant)
FILE NO/S:	CA No 51 of 2013 DC No 39 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	8 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2013
JUDGES:	Fraser and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by majority verdicts of one count of maintaining an unlawful sexual relationship with a child under 16 years (count 1), one count of indecent treatment of a child with the circumstance of aggravation that the child was under care (count 2) and one count of sodomy of a child under care (count 3) – where the appellant contended that the verdicts were “unsafe and unsatisfactory in the circumstances” and “inconsistent with the weight of the evidence” – where the respondent argued the complainant’s account was plausible and not contradicted by sworn evidence – where the inconsistencies present were not so significant as to require the jury to doubt the complainant’s credibility and reliability – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where an order was made under s 21AV of the Evidence Act 1977 (Qld) (‘the Act’) for a support person to be present while the complainant’s sister (‘A’) gave pre-recorded evidence – where the trial judge’s directions complied with s 21AW(2) of the Act in relation to the taking of A’s evidence by way of pre-recording but did not refer to the presence of a support person – where the support person was not visible at any stage during the recording – where the respondent contended that the wording used by the trial judge covered all aspects of the presentation of the evidence – where the respondent otherwise submitted that the error was not one amounting to a substantial miscarriage of justice – where A did not give evidence of the offences – where A’s evidence was relevant as preliminary complaint evidence and as evidence of violent conduct by the appellant towards the complainant – whether the trial judge erred – whether trial judge’s omission resulted in a substantial miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the complainant disclosed during the trial an occasion of sexual misconduct by the appellant against him outside the charged period – where the prosecutor had disclosed this offending to defence counsel the day before the trial commenced – where defence…