R v G - [1995] QCA 517

IN THE COURT OF APPEAL	[1995] QCA 517
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 364 of 1994
[R. v. G]

T H E Q U E E N

v.
G
Fitzgerald P
McPherson JA
Thomas J

Judgment delivered 24 November 1995

Joint reasons for judgment by Fitzgerald P and Thomas J; separate concurring reasons by
McPherson JA

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ALLOWED BY ADDING A RECOMMENDATION FOR CONSIDERATION FOR PAROLE AFTER SERVING TWO YEARS OF THE SENTENCE

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE - appeal against conviction - incest - conduct of defence - allegations of improper conduct of trial counsel -need for material that demonstrates miscarriage of justice - exceptional circumstances necessary before tactical decision can satisfy test

SENTENCE - incest - effect of illness of applicant.

Counsel:	Mr G Strachan for the Appellant
Mr M. Byrne QC for the Respondent
Solicitors:	G. Couper for the Appellant
Director of Prosecutions for the Respondent
Hearing Date:	2 February 1995

REASONS FOR JUDGMENT - FITZGERALD P and THOMAS J.

Judgment delivered 24 November 1995 convicted him on the first count of incest and were unable to reach a verdict in respect of the other two counts. He was sentenced to six years' imprisonment.

The only witness was the complainant. The appellant elected not to give evidence.

The complainant is the appellant's daughter. She was twelve years old at the time of the

The complainant's evidence was to the following effect. In 1982 she was a twelve year
old girl living at home with her mother and brothers. Her father (the appellant) had separated
from her mother about three years previously, but was an occasional visitor. She had her first
period a few months before the incident in question. About six weeks prior to her thirteenth
birthday her mother threw a book at her saying, "You better read this, because your father's
coming up tomorrow to teach you about sex." The next day her mother kept her home from
school. Her father arrived and she was taken into her mother's bedroom and told to lie on the
bed. The appellant applied vaseline to her vagina and told her to spread her legs and lie still so it
would not hurt. He pushed himself into her. She screamed and asked him to stop but he
continued. Her mother came into the room and told the appellant to keep the complainant quiet
because a neighbour was downstairs and he would hear her. The complainant asked her mother
to stop him but she left and shut the door. Eventually he removed his penis and showed her how
it ejaculated. Her mother returned and gave her a pad to put in her pants.

first offence. More than ten years passed before any complaint was made to the police. it would be better for her to have sexual intercourse with him first, otherwise if she were raped by someone else that person would kill her if she screamed.

The complainant…

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 G

Details

AGLC: R v G [1995] QCA 517
Case: [1995] QCA 517
Decision Date: 24/11/1995

CaseChat Overview and Summary

In the case of R v G, the appellant was convicted of incest and was subsequently sentenced. The conviction and sentence were appealed to the relevant court. The central issue in the appeal was whether the trial counsel's conduct during the trial amounted to a miscarriage of justice, and if the appellant's illness should be considered in determining the sentence.

The court considered the appellant's argument that the trial counsel's conduct was improper and contributed to the miscarriage of justice. The court held that the appellant needed to provide material that clearly demonstrated a miscarriage of justice, and that exceptional circumstances must exist before a tactical decision can satisfy this test. The court found that the appellant had not provided sufficient evidence to support their claim, and therefore, the appeal against the conviction was dismissed.

In relation to the sentence, the court acknowledged the appellant's illness but found that it did not warrant a reduction in the sentence. The court considered the nature of the offence and the need for deterrence and rehabilitation, and concluded that the sentence imposed was appropriate. The appeal against the sentence was also dismissed.

The court's final orders were that the appeal against both the conviction and the sentence were dismissed.

Orders