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R v Flynn

R v Flynn

Case [2010] QCA 254 21 September 2010

Appeal

Verdict Unreasonable

Miscarriage of Justice

Joinder of Counts

Misdirection or Non-Direction

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Flynn [2010] QCA 254

PARTIES:

R
v
FLYNN, Martin Francis
(applicant/appellant)

FILE NO/S:

CA No 16 of 2010
CA No 52 of 2009
DC No 60 of 2010
DC No 2696 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGES:

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

ORDERS:

Dismiss the appeals against conviction in CA 52 of 2009 and CA 16 of 2010.1.

Grant the appellant’s application for leave to appeal against sentence only to the extent of allowing the appeal against the sentences imposed for counts 2 and 3 in indictment 2696 of 2008.2.

Vary those sentences by substituting sentences of four years’ imprisonment for count 2 and three years’ imprisonment for count 3 in indictment 2696 of 2008.3.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant appealed against his convictions after two separate trials – where on the first indictment the appellant was convicted of maintaining a sexual relationship with A (count 1), taking an indecent photograph of A (count 2), taking an indecent photograph of B (count 3), indecent treatment of A (count 4), procuring a sexual act by coercion by administering a drug to A (count 5), rape of A (count 6) – where counts 2, 3 and 4 charged as circumstances of aggravation that A and B were children under the age of 12, under the appellant’s care – where the appellant argued the conviction on count 3 was unreasonable – where the appellant submitted that B’s evidence was vague, contradictory, insufficiently particular and could not safely sustain a conviction and was not supported by A’s evidence – whether it was open to the jury to be satisfied beyond reasonable doubt that an indecent photograph was taken of B – whether the photograph taken was indecent – whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of the offence charged in count 3

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on the second indictment of maintaining a relationship with C, a child under 16 (count 1), and rape of C at Brisbane (count 2) and at Burpengary (count 3) – where the appellant argued that the verdicts were unreasonable given the deficiencies and contradictions in the evidence – where the appellant pointed to C’s initial denial of oral and anal intercourse, failure to disclose the two rapes in his first police interview, and discrepancies between his statement to the prosecutor and his…

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 Flynn

Details

AGLC: R v Flynn [2010] QCA 254
Case: [2010] QCA 254
Decision Date: 21 September 2010

CaseChat Overview and Summary

In the matter of R v Flynn, the appellant challenged his convictions and sentences arising from two separate trials. In the first trial, the appellant was convicted of various offences including maintaining a sexual relationship with a child under 12, taking indecent photographs, indecent treatment, and rape. In the second trial, the appellant faced charges of maintaining a relationship with another child under 16 and two counts of rape. The court was tasked with determining the validity of the convictions and sentences, including whether they were unreasonable or insupportable given the evidence, and whether there was a miscarriage of justice.

The legal issues central to this appeal involved the sufficiency and reliability of the evidence, particularly regarding the identification of the indecent photographs and the circumstances under which they were taken. The appellant argued that the evidence was insufficient to support the convictions, particularly pointing to inconsistencies and contradictions in the testimonies. The court had to assess whether these issues were significant enough to undermine the jury's verdicts. Furthermore, the appellant contested the joinder of certain counts, claiming that the evidence for one count should not have been admissible for others. The court also had to consider whether the trial judge's instructions to the jury were adequate, particularly regarding the assessment of certain statements made under s 93A of the Evidence Act.

After thorough consideration, the court found that the jury's verdicts were supported by the evidence and were not unreasonable or insupportable. The court upheld the convictions, dismissing the appellant's arguments regarding the sufficiency and admissibility of evidence. The court held that the trial judge's directions to the jury were adequate, and any perceived omissions did not amount to a miscarriage of justice. However, the court did find that the sentences imposed for certain counts were manifestly excessive and varied them to four years' imprisonment for count 2 and three years' imprisonment for count 3.

The court dismissed the appeals against conviction in both trials, affirming the jury's findings. However, the appeals against the sentences were partially allowed, with the sentences for counts 2 and 3 in the second indictment being reduced as specified.

Orders

Orders of the court

Dismiss the appeals against conviction in CA 52 of 2009 and CA 16 of 2010.1.

Grant the appellant’s application for leave to appeal against sentence only to the extent of allowing the appeal against the sentences imposed for counts 2 and 3 in indictment 2696 of 2008.2.

Vary those sentences by substituting sentences of four years’ imprisonment for count 2 and three years’ imprisonment for count 3 in indictment 2696 of 2008.3.

Background

Background to the litigation

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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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Citations

AGLC Citation

R v Flynn [2010] QCA 254

Most Recent Citation

R v Dunrobin [2012] QCA 209

Cases citing this decision · 6 of 6 shown

R v Etheridge
[2020] QCA 34 Para 1

…issues in the case and the relevant law and explain to the jury how that law applies to the facts which are relevant to the issues.”[3] [2][2010] QCA 254 at [57]. [3] Alford v Magee supra at 466; Fingleton v The Queen , supra.…
R v HBN
[2016] QCA 341 Para 27

…y encouraged the jury to speculate about matters which were not in evidence. [26] R v MAL [2005] QCA 238. [27][2007] QCA 255, [20]. [28][2010] QCA 254, Fraser JA, [56] – [58], White JA and Mullins J agreeing. [29]See Criminal Code 1899 (Qld) s 620(1).…
R v CBJ
[2013] QCA 258

…nguished R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78 , considered R v Dwyer [2008] QCA 117 , cited R v Flynn [2010] QCA 254 , distinguished R v HAD [2006] QCA 464 , distinguished R v KAC [2010] QCA 39 , considered R v Krieger unreported, Court of Criminal Appeal, Qld, CA No 13 of 1991, 28 March 1991, c…
Da v Commission for Children and Young People
[2013] NSWADT 158 Para 1

…ds against currently accepted standards of decency; and indecency must always be judged in the light of time, place and circumstances' (see R v Flynn [2010] QCA 254 at [30] per Fraser JA).…
R v Dunrobin
[2012] QCA 209 Para 1

…and the other decisions suggested that the appropriate head sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
Butler v Queensland Police Service
[2012] QDC 46

…ng (1936) 55 CLR 499, applied Mill v The Queen (1988) 166 CLR 59, cited R v Baker [2011] QCA 104, applied R v Flynn [2010] QCA 254, applied R v Gillies; ex parte Attorney-General [2000] QCA 503, considered R v Hamilton [2009] QCA 391, applied R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied Stuble…

View all 6 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Navarolli
[2009] QCA 49 Para 1

…man JA, with whose reasons Muir JA (in this respect) and Fryberg J agreed, analysed the relevant authorities on this question: [7][2010] 1 Qd R 27; [2009] QCA 49.…
R v Beattie
[2008] QCA 299 Para 1

…ith apparent approval. The appellant’s submissions are not reconcilable with those authorities. [12] R v TQ [2007] QCA 255 at [20]. [13][2008] QCA 299 at [38].…
R v May
[2007] QCA 333 Para 1

…ed other offences involving A (in relation to count 6, for example, A said that B was present and asleep in the house). [6]C.f. R v MAY [2007] QCA 333 per Holmes JA at [34] - [36].…
R v TQ
[2007] QCA 255 Para 1

…he trial judge’s failure to direct the jury in accordance with s 102.[11] [8] Robinson v The Queen (1999) 197 CLR 162. [9] R v TQ [2007] QCA 255. [10] R v TQ [2007] QCA 255 per Williams JA at [4]-[5]. [11] R v TQ [2007] QCA 255 per Mullins J at [44].…
Phillips v The Queen
[2006] HCA 4

…“[135] The appellant’s counsel submitted that “the test for the application of s 567” was found in Phillips v The Queen (2006) 225 CLR 303 at 307, in which the Court said: ‘It was not in controversy that if the evidence of each complainant were admissible on the charges relating to incidents narrated by other complai…
Fingleton v The Queen
[2005] HCA 34

…166; [2005] HCA 34, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied R v Beattie [2008] QCA 299, cited R v Cranston [1988] 1 Qd R 159, applied R v MAY [2007] QCA 333, cited R v Navarolli [2010] 1 Qd R 27; [2009] QCA 49, cited R v Siedofsky…
MFA v The Queen
[2002] HCA 53

…606; [2002] HCA 53, applied R v Beattie [2008] QCA 299, cited R v Cranston [1988] 1 Qd R 159, applied R v MAY [2007] QCA 333, cited R v Navarolli [2010] 1 Qd R 27; [2009] QCA 49, cited R v Siedofsky [1989] 1 Qd R 655, cited R v TQ [2007] QCA 255, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cit…
Robinson v The Queen
[1999] HCA 42

…162; [1999] HCA 42, cited S v The Queen (1989) 168 CLR 266; [1989] HCA 66, cited COUNSEL: P J Callaghan SC, with S M Ryan, for the applicant/appellant T A Fuller for the respondent SOLICITORS: Ryan and Bosscher for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent…
M v the Queen
[1994] HCA 63

…487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied R v Beattie [2008] QCA 299, cited R v Cranston [1988] 1 Qd R 159, applied R v MAY [2007] QCA 333, cited R v Navarolli [2010] 1 Qd R 27; [2009] QCA 49, cited R v Siedofsky [1989] 1 Qd R 655, cited R v TQ [2007] QCA 255, cited…
Alford v Magee
[1952] HCA 3

…437; [1952] HCA 3, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied R v Beattie [2008] QCA 299, cited R v Cranston [1988] 1 Qd R 159, applied R v MAY [2007] QCA 333, cited R v…
S v the Queen
[1989] HCA 66

…266; [1989] HCA 66, cited COUNSEL: P J Callaghan SC, with S M Ryan, for the applicant/appellant T A Fuller for the respondent SOLICITORS: Ryan and Bosscher for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent…
[1970] 1 QB 125
[1970] 1 QB 125

…es which constitute a series of offences committed in the prosecution of a single purpose. [139] The appellant's proposition was rejected in R v Kray [1970] 1 QB 125 in which Widgery LJ said (for the court) (130–131): ‘... offences cannot be regarded as of a similar character for the purposes of joinder unless som…

Legislation cited in this decision · 2

Evidence Act 1977 (Qld)
93A 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161B 2 mentions (from Para 1)

CITATION:	R v Flynn [2010] QCA 254
PARTIES:	R v FLYNN, Martin Francis (applicant/appellant)
FILE NO/S:	CA No 16 of 2010 CA No 52 of 2009 DC No 60 of 2010 DC No 2696 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2010
JUDGES:	Fraser and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Dismiss the appeals against conviction in CA 52 of 2009 and CA 16 of 2010.1. Grant the appellant’s application for leave to appeal against sentence only to the extent of allowing the appeal against the sentences imposed for counts 2 and 3 in indictment 2696 of 2008.2. Vary those sentences by substituting sentences of four years’ imprisonment for count 2 and three years’ imprisonment for count 3 in indictment 2696 of 2008.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant appealed against his convictions after two separate trials – where on the first indictment the appellant was convicted of maintaining a sexual relationship with A (count 1), taking an indecent photograph of A (count 2), taking an indecent photograph of B (count 3), indecent treatment of A (count 4), procuring a sexual act by coercion by administering a drug to A (count 5), rape of A (count 6) – where counts 2, 3 and 4 charged as circumstances of aggravation that A and B were children under the age of 12, under the appellant’s care – where the appellant argued the conviction on count 3 was unreasonable – where the appellant submitted that B’s evidence was vague, contradictory, insufficiently particular and could not safely sustain a conviction and was not supported by A’s evidence – whether it was open to the jury to be satisfied beyond reasonable doubt that an indecent photograph was taken of B – whether the photograph taken was indecent – whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of the offence charged in count 3 CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on the second indictment of maintaining a relationship with C, a child under 16 (count 1), and rape of C at Brisbane (count 2) and at Burpengary (count 3) – where the appellant argued that the verdicts were unreasonable given the deficiencies and contradictions in the evidence – where the appellant pointed to C’s initial denial of oral and anal intercourse, failure to disclose the two rapes in his first police interview, and discrepancies between his statement to the prosecutor and his…