R v GAQ

Case [2013] QCA 309 29 July 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GAQ [2013] QCA 309

PARTIES:

R
v
GAQ
(appellant)

FILE NOS:

CA No 104 of 2013
DC No 52 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Orders delivered ex tempore on 29 July 2013
Reasons and further order delivered on 18 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2013

JUDGES:

Margaret McMurdo P and Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 29 July 2013

1.    The appeal is allowed.

2.    The convictions are quashed.

3.    Reasons reserved as to whether a retrial will be ordered or verdicts of acquittal will be entered.

4.    Bail is granted on the appellant's own undertaking with the condition that he does not make, or attempt to make, any contact whatsoever with the complainant, or the following prosecution witnesses C, E, K and S unless he has the prior written approval of the Director of Public Prosecutions to do otherwise. This order is made until the final orders of this Court are pronounced.

Delivered on 18 October 2013

1.    A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant pleaded not guilty to two counts of unlawfully and indecently dealing with his daughter who was under the age of 12 years (counts 1 and 2) and one count of permitting himself to be indecently dealt with by his daughter who was under the age of 12 years (count 3) – where the appellant was found not guilty on count 1 but was convicted on counts 2 and 3 –– where the complainant, her boyfriend and her younger sister were affected child witnesses under Div 4A Evidence Act 1977 (Qld) for each of whom it was ordered that a support person be present at the pre-recording of their evidence – where the appellant contends that the trial judge's directions did not adequately comply with the mandatory requirements of s 21AW(2) Evidence Act – whether trial judge erred – whether miscarriage of justice occurred – whether substantial miscarriage of justice in the terms of s 668E(1A) Criminal Code 1899 (Qld) occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the appellant contends that the verdicts were unsafe and unsatisfactory, not supported having regard to the evidence, inconsistent and against the weight of evidence – where the appellant contends that the complainant's account was internally inconsistent as to the time during which counts 2 and 3 occurred – where the appellant contends that the only rational basis for the not guilty verdict on count 1 and the guilty verdicts on counts 2 and 3 was that the jury were not…

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 GAQ

Details

AGLC: R v GAQ [2013] QCA 309
Case: [2013] QCA 309
Decision Date: 29 July 2013

CaseChat Overview and Summary

In the case of R v GAQ, the appellant was convicted on two counts of unlawfully and indecently dealing with his daughter under the age of 12 years and one count of permitting himself to be indecently dealt with by his daughter under the same age. The appellant was acquitted on a separate count of similar conduct. The complainant, her boyfriend, and her younger sister were affected child witnesses. A support person was present for each of them during the pre-recording of their evidence. The appellant appealed against his convictions, asserting that the trial judge's directions did not adequately comply with the mandatory requirements of s 21AW(2) of the Evidence Act 1977 (Qld). The appellant also argued that the verdicts were unsafe and unsatisfactory, inconsistent, and against the weight of evidence. Additionally, he contended that the trial judge's Longman direction was inadequate, failing to identify relevant circumstances for evaluating the complainant's uncorroborated testimony and that the trial judge erred by not giving a Domican direction or, in the alternative, a Shepherd direction.

The court had to decide whether the trial judge erred in his directions to the jury, particularly in relation to the complainant's uncorroborated testimony, and whether those errors amounted to a miscarriage of justice. The court also had to assess whether the verdicts were unreasonable or could not be supported having regard to the evidence. The court examined the internal consistency of the complainant's account and whether the jury's verdicts could be properly reconciled. Furthermore, the court needed to determine if the trial judge's Longman direction was adequate and if the judge erred by not providing a Domican or Shepherd direction.

The court found that the trial judge's directions did not adequately comply with the statutory requirements, resulting in a miscarriage of justice. The court also determined that the verdicts were inconsistent and against the weight of evidence. The court held that the trial judge's Longman direction was inadequate and that there was an error in not giving a Domican or Shepherd direction. These errors undermined the fairness of the trial, leading to an unsafe and unsatisfactory verdict. Consequently, the appeal was allowed, the convictions were quashed, and a retrial was ordered. The court granted the appellant bail on the condition that he does not make any contact with the complainant or specified witnesses unless approved by the Director of Public Prosecutions. The final orders of the court were reserved pending further proceedings.

Orders

Orders of the court

Delivered ex tempore on 29 July 2013

1. The appeal is allowed.

2. The convictions are quashed.

3. Reasons reserved as to whether a retrial will be ordered or verdicts of acquittal will be entered.

4. Bail is granted on the appellant's own undertaking with the condition that he does not make, or attempt to make, any contact whatsoever with the complainant, or the following prosecution witnesses C, E, K and S unless he has the prior written approval of the Director of Public Prosecutions to do otherwise. This order is made until the final orders of this Court are pronounced.

Delivered on 18 October 2013

1. A retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v GAQ [2013] QCA 309

Most Recent Citation

R v FAD [2013] QCA 334

Cases citing this decision · 6 of 6 shown

R v App
[2021] QCA 162 Para 1

…ld not be cured by any other form of words, and the trial was therefore an irregular trial.[61] [61]Citing R v AAR [2014] QCA 20 at [24], and R v GAQ [2013] QCA 309 at [10].…
R v HBO
[2017] QCA 18 Para 27

…general delay in making the complaint, that required the jury to scrutinise J’s evidence with great care before acting on it.” [10][2013] QCA 309, [68].…
R v RAQ
[2014] QCA 261 Para 1

…’s directions to the jury and to try to ensure that all necessary directions are given”.[19] [18] R v AAR [2014] QCA 20 at [24], citing R v GAQ [2013] QCA 309, R v DM [2006] QCA 79, R v Michael [2008] QCA 33 and R v BCL [2013] QCA 108. [19] R v Doolan [2014] QCA 246 at [34].…
R v Carter
[2014] QCA 120 Para 1

…on depended, when the complainant had a support person near her (or him) while giving evidence, in a similar way to that discussed in Bisht . [12][2013] QCA 309, [12]. [13][2013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]…
R v AAR
[2014] QCA 20 Para 1

…e upheld only if the court concludes for itself upon a review of the record that there has been no substantial miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (…
R v FAD
[2013] QCA 334 Para 1

…had made an order under s 21AV that a support person for each of those witnesses be present at the recording of their evidence. [18][2013] QCA 309.…

View all 6 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Horvath
[2013] QCA 196 Para 1

…as to the appellant's guilt; its probative value was not increased or decreased nor given any greater or lesser weight because of those measures. [7][2013] QCA 196, [6]-[10].…
R v BCL
[2013] QCA 108 Para 1

…ecord that there has been no substantial miscarriage of justice.[10] [8][2006] QCA 79, [26]. [9][2008] QCA 33, [38]. [10] R v Michael , [38]; R v BCL [2013] QCA 108, [8].…
R v Michael
[2008] QCA 33 Para 1

…s able to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice.[10] [8][2006] QCA 79, [26]. [9][2008] QCA 33, [38]. [10] R v Michael , [38]; R v BCL [2013] QCA 108, [8].…
R v DM
[2006] QCA 79 Para 1

…irregular, this Court is able to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice.[10] [8][2006] QCA 79, [26]. [9][2008] QCA 33, [38]. [10] R v Michael , [38]; R v BCL [2013] QCA 108, [8].…
Ryan v The Queen
[2000] HCA 60

…1977 (Qld), s 93A, Div 4A, s 21AK, s 21AV, s 21AW Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, considered Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R…
Re Ruddock; Ex parte Reyes
[2000] HCA 66 Para 1

…nd inconsistencies about details of the alleged offending; and that she had tried to block out her memory of the incident. [51](1989) 168 CLR 79. [52](2000) 206 CLR 161.…
Mackenzie v The Queen
[1996] HCA 35

…ueen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCL [2013] QCA 108, cited R v DM [2006] QCA 79, discussed R v Horvath [2013] QCA 196, approved R v Jacobs [1993] 2 Qd R 541, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, discussed She…
Shepherd v The Queen
[1990] HCA 56

…(2008) 181 A Crim R 490; [2008] QCA 33, discussed Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, considered COUNSEL: R A East for the appellant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent…
Longman v The Queen
[1989] HCA 60

…Queen (1992) 173 CLR 555; [1992] HCA 13, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCL [2013] QCA 108, cited R v DM [2006] QCA 79, discussed R v Horvath [2013] QCA 196, approved R v Jacobs [1993] 2 Qd R 541, cit…
Domican v R
[1992] HCA 13

…Queen (2000) 206 CLR 161; [2000] HCA 60, considered Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCL [2013] QCA 108, cited R v DM [2006] QCA 79, discussed R v H…
Crampton v The Queen
[2000] HCA 6023

…Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, considered Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCL [2013] QCA 108, cited R v DM [2006] QCA 79, discussed R v…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
93A 3 mentions (from Para 1)

CITATION:	R v GAQ [2013] QCA 309
PARTIES:	R v GAQ (appellant)
FILE NOS:	CA No 104 of 2013 DC No 52 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	Orders delivered ex tempore on 29 July 2013 Reasons and further order delivered on 18 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2013
JUDGES:	Margaret McMurdo P and Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 29 July 2013 1. The appeal is allowed. 2. The convictions are quashed. 3. Reasons reserved as to whether a retrial will be ordered or verdicts of acquittal will be entered. 4. Bail is granted on the appellant's own undertaking with the condition that he does not make, or attempt to make, any contact whatsoever with the complainant, or the following prosecution witnesses C, E, K and S unless he has the prior written approval of the Director of Public Prosecutions to do otherwise. This order is made until the final orders of this Court are pronounced. Delivered on 18 October 2013 1. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant pleaded not guilty to two counts of unlawfully and indecently dealing with his daughter who was under the age of 12 years (counts 1 and 2) and one count of permitting himself to be indecently dealt with by his daughter who was under the age of 12 years (count 3) – where the appellant was found not guilty on count 1 but was convicted on counts 2 and 3 –– where the complainant, her boyfriend and her younger sister were affected child witnesses under Div 4A Evidence Act 1977 (Qld) for each of whom it was ordered that a support person be present at the pre-recording of their evidence – where the appellant contends that the trial judge's directions did not adequately comply with the mandatory requirements of s 21AW(2) Evidence Act – whether trial judge erred – whether miscarriage of justice occurred – whether substantial miscarriage of justice in the terms of s 668E(1A) Criminal Code 1899 (Qld) occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the appellant contends that the verdicts were unsafe and unsatisfactory, not supported having regard to the evidence, inconsistent and against the weight of evidence – where the appellant contends that the complainant's account was internally inconsistent as to the time during which counts 2 and 3 occurred – where the appellant contends that the only rational basis for the not guilty verdict on count 1 and the guilty verdicts on counts 2 and 3 was that the jury were not…