R v G; ex parte

[2001] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v G; ex parte AG [2001] QCA 158

PARTIES:

R
v
G
(respondent / cross appellant)

EX PARTE ATTORNEY GENERAL (QUEESLAND)
(appellant / cross respondent)

FILE NO/S:

CA No 331 of 2000
CA No 332 of 2000
DC No 387 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by Attorney-General;  Appeal against conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

27 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2001

JUDGES:

Thomas JA, Chesterman and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

 Appeal against convictions allowed.  Verdict of guilty set aside and replaced with acquittal on all 3 counts.
Attorney-General’s appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – INDECENT DEALING WITH A CHILD UNER 16 YEARS – where complainant lying adjacent to her sleeping mother when offences allegedly occurred

CRIMINAL LAW – EVIDENCE – COMPETENCE AND COMPELLABILITY – CHILDREN – GENERALLY- where child’s evidence inconsistent and improbable – where no corroboration – where no contemporaneous complaint – where child apparently normal the next day – where accused’s evidence in contradiction of the child’s evidence remains consistent under cross examination

CRIMINAL LAW –APPEAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE– where aspects of complainant’s evidence so improbable and inconsistent jury could not be convinced of accused’s guilt beyond reasonable doubt – where jury’s verdict unsafe and unsatisfactory – where conviction quashed

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL – where inappropriate to decide appeal against sentence

Jones v The Queen [1997] 191 CLR 439 cited
M v The Queen (1994) 181 CLR 487 considered

COUNSEL:

P Rutledge for the appellant / cross respondent
AJ Rafter for the respondent / cross appellant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Gilshenan & Luton for the respondent

1. THOMAS JA:  The appellant was convicted of three counts involving sexual treatment of his eight year old niece during a night in October 1999.

1. The circumstances are set out in the reasons of Holmes J which I have had the advantage of reading, and with which I generally agree.  As I have found the present case particularly difficult to decide, I shall briefly state my own additional reasons.

1. The acts in question are said to have occurred during a visit to the appellant's home by the complainant girl and her family (including mother, father and grandparents).  The relationships between the members of the family appear to have been good and no untoward conduct on the part of the appellant is alleged to have occurred at any other time. 

1. There was a complete absence of corroborating evidence notwithstanding that the complainant's mother was sleeping adjacent to where the offences are said to have been committed. It is, of course, not impossible that an offender might choose to do something like this adjacent to the girl's mother in a room that was sufficiently…