R v FAL - [2017] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAL [2017] QCA 22

PARTIES:

R
v
FAL
(appellant)

FILE NO/S:

CA No 284 of 2016
DC No 210 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 13 October 2016

DELIVERED ON:

3 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2016

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under the age of 16 years – where the appellant contends the verdict is unreasonable and cannot be supported by the evidence – where the central allegations in the complainant’s evidence were not directly supported by other evidence – whether the complainant’s evidence was sufficient to establish an unlawful sexual relationship

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD – where the appellant was convicted by a jury of maintaining a sexual relationship with a child over a period of three years and nine months – where the appellant contends that “fleeting low level contact” of a sexual nature could not constitute a sexual relationship – whether a “relationship” within the meaning of s 229B(2) Criminal Code (Qld) requires a minimum degree of invasiveness or a minimum frequency of sexual contact

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant did not seek a direction in terms of Robinson v The Queen (1999) 197 CLR 162 at trial – where the jury asked for a redirection on the maintaining a sexual relationship with a child offence – where the appellant contends that the failure to give a direction in terms of Robinson gave rise to a miscarriage of justice – where the complainant was a child and her evidence was uncorroborated – where the trial judge had addressed the inconsistencies between the complainant’s accounts in the summing up – where there was no exceptional delay – where the complainant was not a very young child – where the complainant did not suffer any illness or disorder relevant to the assessment of her credibility – whether a miscarriage of justice occurred

Criminal Code (Qld), s 210, s 229B, s 668E(1)

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Baden-Clay (2016) 90 ALJR 1013; (2016) 334 ALR 234; [2016] HCA 35, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL: S T Courtney for the…

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 FAL

Details

AGLC: R v FAL [2017] QCA 22
Case: [2017] QCA 22
Decision Date: 3 March 2017

CaseChat Overview and Summary

The appellant was convicted by a jury of maintaining a sexual relationship with a child and one count of indecent treatment of a child under the age of 16 years. The appellant contends the verdict is unreasonable and cannot be supported by the evidence. The complainant’s central allegations were not directly supported by other evidence. The appellant argues that the complainant’s evidence was insufficient to establish an unlawful sexual relationship.

The court had to determine whether the complainant’s evidence alone was sufficient to establish an unlawful sexual relationship, despite the lack of corroborating evidence. The court also had to decide whether a “relationship” within the meaning of s 229B(2) Criminal Code (Qld) required a minimum degree of invasiveness or a minimum frequency of sexual contact. Additionally, the court had to consider whether the failure to give a direction in terms of Robinson v The Queen constituted a miscarriage of justice. The trial judge had addressed the inconsistencies between the complainant’s accounts in the summing up. The complainant was not a very young child, did not suffer any illness or disorder relevant to the assessment of her credibility, and there was no exceptional delay.

The court found that the complainant’s evidence was sufficient to establish an unlawful sexual relationship. The court also found that a “relationship” within the meaning of s 229B(2) Criminal Code (Qld) did not require a minimum degree of invasiveness or a minimum frequency of sexual contact. The court further found that the failure to give a direction in terms of Robinson did not constitute a miscarriage of justice. The appeal against conviction was dismissed.

Orders

Orders of the court

Appeal against conviction 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v FAL [2017] QCA 22
PARTIES:	R v FAL (appellant)
FILE NO/S:	CA No 284 of 2016 DC No 210 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba – Date of Conviction: 13 October 2016
DELIVERED ON:	3 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2016
JUDGES:	Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under the age of 16 years – where the appellant contends the verdict is unreasonable and cannot be supported by the evidence – where the central allegations in the complainant’s evidence were not directly supported by other evidence – whether the complainant’s evidence was sufficient to establish an unlawful sexual relationship CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD – where the appellant was convicted by a jury of maintaining a sexual relationship with a child over a period of three years and nine months – where the appellant contends that “fleeting low level contact” of a sexual nature could not constitute a sexual relationship – whether a “relationship” within the meaning of s 229B(2) Criminal Code (Qld) requires a minimum degree of invasiveness or a minimum frequency of sexual contact CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant did not seek a direction in terms of Robinson v The Queen (1999) 197 CLR 162 at trial – where the jury asked for a redirection on the maintaining a sexual relationship with a child offence – where the appellant contends that the failure to give a direction in terms of Robinson gave rise to a miscarriage of justice – where the complainant was a child and her evidence was uncorroborated – where the trial judge had addressed the inconsistencies between the complainant’s accounts in the summing up – where there was no exceptional delay – where the complainant was not a very young child – where the complainant did not suffer any illness or disorder relevant to the assessment of her credibility – whether a miscarriage of justice occurred Criminal Code (Qld), s 210, s 229B, s 668E(1) MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Baden-Clay (2016) 90 ALJR 1013; (2016) 334 ALR 234; [2016] HCA 35, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
COUNSEL:	S T Courtney for the…