R v GAP

Case [2012] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAP [2012] QCA 193

PARTIES:

R
v
GAP
(appellant/applicant)

FILE NO/S:

CA No 324 of 2011
CA No 104 of 2012
DC No 165 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:


District Court at Rockhampton

DELIVERED ON:

20 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2012

JUDGES:

Muir and Gotterson JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Gotterson JA and Fryberg J concurring as to the orders made, Muir JA dissenting

ORDERS:

1.   Grant leave to appeal on ground 2.

2.   Appeal against conviction dismissed.

3.   Application for extension of time to apply for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of one count of indecent treatment (count 2), one count of wilful exposure to an indecent video tape (count 4) and one count of rape (count 5) – where appellant acquitted of attempting to procure an indecent act (count 3) – where the complainant was the appellant’s daughter – where the complainant gave evidence of acts of sexual misconduct not appearing on the indictment – where appellant submitted the jury should have been warned against propensity reasoning – where appellant submitted count 3 was inextricably linked to count 4 – where appellant submitted verdicts were inconsistent – where appellant submitted verdicts were unsafe and unsatisfactory due to inconsistencies in the complainant’s accounts and delay – where trial judge directed the jury that consent was not an issue with respect to count 5 as a child under 12 was incapable of consenting under s 349(3) of the Criminal Code – where that section did not come into force until 5 January 2004 – where count 5 may have been committed prior to that date – whether the trial judge erred in failing to give a direction with respect to propensity reasoning – whether the verdicts were inconsistent – whether the verdicts were unsafe and unsatisfactory – whether the trial judge misdirected the jury with respect to consent

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where appellant convicted of one count of indecent treatment (count 2), one count of wilful exposure to an indecent video tape (count 4) and one count of rape (count 5) – where appellant sentenced to concurrent terms of imprisonment of 12 months, six months and four years respectively with fixed parole eligibility – where applicant applies for an extension of time in which to appeal against the count 5 sentence – where appellant submitted sentence manifestly excessive – whether application lacks utility – whether application for extension of time should be granted

Criminal Code 1889 (Qld), s 349(3)

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, considered
HML v The Queen

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Details
AGLC
R v GAP [2012] QCA 193
Case
[2012] QCA 193
Decision Date

CaseChat Overview and Summary

The appellant, GAP, was convicted in the Supreme Court of Queensland of indecent treatment, wilful exposure to an indecent video tape, and rape. The complainant was the appellant's daughter. The appellant appealed against his conviction and sentence, as well as applying for an extension of time to appeal against the sentence on count 5. The legal issues before the court were whether the trial judge erred in failing to give a direction with respect to propensity reasoning, whether the verdicts were inconsistent, whether the verdicts were unsafe and unsatisfactory, and whether the trial judge misdirected the jury with respect to consent.

The court found that the trial judge did not err in failing to give a direction with respect to propensity reasoning, as the evidence was not of the type that would require such a direction. The court also found that the verdicts were not inconsistent and were supported by the evidence. The court found that the appellant's submission that the verdicts were unsafe and unsatisfactory due to inconsistencies in the complainant’s accounts and delay was without merit. The court found that the trial judge did not misdirect the jury with respect to consent, as the section of the Criminal Code relied upon by the appellant did not come into force until after the alleged offence was committed.

The court granted leave to appeal on ground 2, but dismissed the appeal against conviction. The court also dismissed the application for an extension of time to appeal against the sentence on count 5, finding that the application lacked utility.

Orders

Orders of the court

1. Grant leave to appeal on ground 2.

2. Appeal against conviction dismissed.

3. Application for extension of time to apply for leave to appeal against sentence dismissed.

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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