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 2017DIVISION:
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, citedCOUNSEL:
S Courtney for the appellant
P J McCarthy for the respondentSOLICITORS:
Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Morrison JA and with the order his Honour proposes.
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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- AGLC
- R v Fanning [2017] QCA 244
- Case
- [2017] QCA 244
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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