R v Fanning

Case [2017] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fanning [2017] QCA 244

PARTIES:

R
v
FANNING, Neville John
(appellant)

FILE NO/S:

CA No 97 of 2017
DC No 91 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 4 May 2017 (Richards DCJ)

DELIVERED ON:

20 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2017

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was tried on two charges of indecent treatment of a girl under 16, under 14 – where the appellant was convicted of one count but acquitted on the other – where the appellant appeals against the conviction on the ground that the acquittal on count 2 is inconsistent with the conviction on count 1 to the extent that the verdicts cannot reasonably stand together – where the complainant and appellant both gave evidence and there was evidence of a preliminary complaint – where the complainant’s case detailed the counts occurring on the same day but at two distinct times – where the appellant’s case was that the offending never occurred and he did not remember the events – where the preliminary complaint evidence supported the complainant’s account but there were inconsistencies in how and when count 2 occurred – where those inconsistencies may have led to inferences that count 2 did not occur in the way described by the complainant – whether the guilty verdict on count 1 is inconsistent with the acquittal on count 2

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
R v CX[2006] QCA 409, cited
R v SBL[2009] QCA 130, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

S Courtney for the appellant
P J McCarthy for the respondent

SOLICITORS:

Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the order his Honour proposes.

  2. MORRISON JA:  The appellant was tried on two charges of indecent treatment of a girl under 16, under 14.  All of the counts arose out of the same event on an unknown date between December 1984 and July 1986.  The counts were particularised as follows:

    (a)count 1 – indecent treatment – the appellant was sitting in the front passenger seat of a utility vehicle and the complainant was sitting on his lap – the appellant touched the complainant on her breasts; and

    (b)count 2 – indecent treatment – the appellant was sitting in the front passenger seat of a utility vehicle and the complainant was sitting on his lap – the appellant touched the complainant on the vaginal area on the outside…

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Details
AGLC
R v Fanning [2017] QCA 244
Case
[2017] QCA 244
Decision Date

CaseChat Overview and Summary

In the matter of R v Fanning, the appellant appealed against a conviction on a charge of indecent treatment of a girl under 16. The appellant was acquitted on a related charge of indecent treatment of a girl under 14. The central issue before the court was whether the acquittal on the second count was inconsistent with the conviction on the first count, such that the verdicts could not reasonably stand together. The appellant argued that the acquittal on count 2 demonstrated that the jury did not accept the complainant’s evidence, which was necessary to support the conviction on count 1.

The court considered the established principles regarding inconsistent verdicts, noting that the test for inconsistency is one of logic and reasonableness. The court assessed whether a reasonable jury, properly applying their minds to the facts, could have arrived at the differing verdicts. The court highlighted that different verdicts could result from a jury correctly following instructions to consider each count separately and applying the requirement that all elements must be proved beyond reasonable doubt. The court also noted that the jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful.

After considering the evidence and the applicable principles, the court found that there was a proper way to reconcile the verdicts. The court concluded that a reasonable jury could have arrived at the differing verdicts, and thus the verdicts were not inconsistent. The appeal was dismissed, and the conviction on count 1 was upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Q said she had no recollection of the complainant visiting or staying the night, nor could she recall a time when they were together in a utility on the property. She said there was a family utility on the property.Evidence of the appellant’s wife The appellant’s wife said she knew of the complainant’s mother, Mrs X, but not the complainant. In MacKenzie v The Queen[18], Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of “logic and reasonableness”:“… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”[19][18](1996) 190 CLR 348; [1996] HCA 35.[19]MacKenzie at 367; internal footnotes omitted. Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:[20][20]R v CX [2006] QCA 409 at [33]; R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341 at [28]; R v SBL [2009] QCA 130 at [28]-[34].(a)the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;(b)as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;(c)if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;(d)different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;(e)different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;[21](f)a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;[22](g)a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;(h)in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and(i)it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.[21] Osland v The Queen (1998) 197 CLR 316 at 356-357.[22]R v Smillie [2002] QCA 341 [28].Submissions

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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