R v GAX

Case [2016] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAX [2016] QCA 189

PARTIES:

R
v
GAX
(appellant)

FILE NO/S:

CA No 37 of 2016
DC No 187 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Mackay – Date of Conviction: 8 February 2016

DELIVERED ON:

22 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2016

JUDGES:

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

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of indecently dealing with a child under the age of 16 years who was his lineal descendant – where the complainant gave evidence that the appellant, her father, lay in bed with her and that his fingers were down near where her underwear was supposed to be – where the complainant’s mother and sister also gave evidence of finding the appellant in bed with the complainant – where the mother had made a notation on the calendar on the following day to mark the date on which the incident occurred – where there were some inconsistencies between the accounts of the complainant, the mother and the sister – whether, considering the whole of the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was acquitted of two similar charges – where the complainant’s evidence on these charges was vague and uncertain and not supported by any corroborating evidence of other witnesses – whether the verdict of guilty was inconsistent with the two verdicts of not guilty

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v SBL[2009] QCA 130, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

M J Copley QC for the appellant
S J Farnden for the respondent

SOLICITORS:

Macrossan and Amiet Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The appellant was convicted on 8 February 2016 of the indecent treatment of his daughter on a date unknown between 11 and 14 July 2003.  He was acquitted of two related counts of indecent treatment of the same girl.  He has appealed against his conviction on two grounds.  The first was that the verdict was unreasonable and could not be supported by the evidence.  The second was that the guilty verdict was inconsistent with the not guilty verdicts.

  2. Unlike my colleagues, I would allow the appeal on the first ground, set aside the conviction and direct a verdict of acquittal.  These are my reasons.

Continue reading R v GAX

Sign in free to access the full text

Details
AGLC
R v GAX [2016] QCA 189
Case
[2016] QCA 189
Decision Date

CaseChat Overview and Summary

In the matter of R v GAX, the appellant was convicted of indecently dealing with a child under the age of 16 years, who was his lineal descendant. The complainant testified that the appellant, her father, lay in bed with her, with his fingers down near her underwear. The complainant’s mother and sister also testified that they found the appellant in bed with the complainant. The mother further testified that she marked the date on the calendar on the following day to indicate when the incident occurred. There were inconsistencies between the accounts of the complainant, the mother, and the sister. The court was required to determine whether, considering the whole of the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence.

The court considered whether the jury's verdict was unreasonable in light of the evidence presented. The jury was entitled to reject the appellant's denial of the incident, especially given the complainant's and the mother's and sister's evidence of finding the appellant in bed with the complainant. However, the jury needed to consider whether the prosecution evidence established beyond reasonable doubt that the appellant touched the complainant on the vagina on the night of 11 July 2003. The complainant's evidence was uncertain and raised concerns about her long-term memory and reliability. Additionally, there were inconsistencies between her account and those of her mother and sister. The court concluded that the jury was entitled to conclude that there was an incident in the complainant’s bed, but this did not necessarily mean the appellant was guilty of the charged offence.

The court found that the jury's verdict on the third count was rational and not unreasonable. The complainant's evidence was supported by her mother and sister, who found the appellant in a compromising position with the complainant in bed. The relatively minor inconsistencies between their accounts suggested that they were describing the same event and had not colluded. The jury was entitled to accept the complainant's evidence of what she remembered and the mother's evidence of marking the calendar, which added credibility to the complainant's account. The different verdicts indicated that the jury had considered each count separately and followed the trial judge's instructions. The appeal against conviction was dismissed.

The court dismissed the appeal against conviction and the appellant's conviction stands.

Orders

Orders of the court

The appeal against conviction is dismissed.

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

The appellant gave evidence that none of the offending alleged by the complainant happened. In respect of this count he stated that there was no incident where he was lying beside the complainant in her bed when his wife came into the room and turned on the light. He did not touch the complainant on or near her vagina.[18] In cross-examination he confirmed that he had no recollection of any incident where he was lying in bed with the complainant.[19][18]AB 136.[19]AB 138.Conclusion The first ground of appeal requires this Court to consider whether on the whole of that evidence it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty: SKA v The Queen.[20][20](2011) 243 CLR 400, [20] – [22]. The jury were entitled to reject the appellant’s evidence, especially as he denied any incident where he was lying with the complainant in her bed. Given the evidence of the mother and the sister, it seemed implausible that there was no incident in the bed. The jury were entitled to conclude that there was an incident with the appellant in the complainant’s bed the night before the mother put an asterisk in the calendar. But this did not mean he was guilty of the charged offence. The jury was required to consider whether the prosecution evidence established beyond reasonable doubt that the appellant touched the complainant on the vagina on the night of 11 July 2003. The only evidence of that touching came from the complainant. Particular caution was needed before accepting her evidence because of the 10 year delay between when the alleged offence occurred and the complaint was made. Other concerns were that at the same time as the complaint to police, the mother commenced a property and maintenance claim against the appellant and the complainant was prone to suggestion. Further, she had a very poor, unreliable long term memory. In her complaint to police she said the appellant put his fingers in her vagina. But her evidence at trial was that she could feel his hands down where her underpants were supposed to be; she did not remember what was happening; she remembered his fingers were near her vagina; she repeated that she did not remember what was happening; his fingers were “down there”; and she could not recall how long his fingers were there.[21] This evidence in combination raised real uncertainty as to what, if anything, happened with the appellant’s fingers. Another concern was that the complainant’s evidence was that she was asleep and “ended up finding out what happened.”[22] This raised the reasonable possibility that she reconstructed what happened after her mother understandably reacted emotionally and angrily to finding the appellant in bed with the complainant.[21]See [4] of these reasons.[22]AB 25. Of further concern were the inconsistencies between the complainant’s evidence and that of her mother and sister, some of which, I consider, were more than minor. The mother described the complainant’s underpants as rolled or folded down an inch whereas the complainant described them as down near her ankles and the sister described them as “right down.” The mother said the complainant’s pink singlet was “just normal” whereas the sister said it was above the complainant’s “boobs.” The complainant, however, said her sister was asleep in her own bed, at the time.

Ratio Decidendi

Legal Principle Established

With regard to ground two, the appellant submitted that the availability or otherwise of evidence independent of the complainant which provided some support for her evidence that she was indecently dealt with would be the obvious explanation for the combination of verdicts. However, he submitted that no rational jury could regard the complainant’s evidence as supported by either her mother’s evidence or her sister’s evidence in view of the substantial and important discrepancies between her account and their accounts and between the two accounts given by the two witnesses. That would then just have left the complainant’s evidence for consideration. The appellant submitted that, as the jury was not satisfied beyond reasonable doubt of her truthfulness or reliability in relation to those counts where there was no independent supporting evidence, the jury should logically have acquitted the appellant on count three as well.Consideration The complainant’s evidence was supported in important ways by her mother and sister who saw the appellant in bed with her, at a time when they were not expected to be in bed together with the mother having arrived home with dinner and calling out for people to come to eat. Any suggestion that the appellant was checking the complainant’s bed to see if she had wet the bed by lying in it was not suggested by him and had it been it would have been plainly ridiculous. His case was that the incident described in count three, where he was lying beside the complainant in her bed when his wife came into the room and turned the light on, did not happen. The conviction on count three can be accounted for by the fact that the complainant’s mother and sister found the appellant in a compromising position with the complainant in bed, with the covers over them, and the complainant’s underpants down. The relatively minor inconsistencies between their versions of events rather tends to suggest that they did not collude and that they were, nevertheless, describing the same occasion. The jury were entitled to accept that the risk of reconstruction was avoided by the prosecutor directing the complainant to only give evidence of what she remembered. The evidence given by the mother that she had made an asterisk on the calendar on the following day to mark the date when she had caught the appellant sexually abusing their daughter was capable of acceptance by the jury and added credibility and reliability to the complainant’s evidence in relation to count three. The difference in the strength of evidence on count three readily accounts for the difference in the verdicts. The different verdicts tend to suggest that the jury faithfully followed the careful instructions given to them by the trial judge to consider each count separately. There was a rational distinction between the strength of the evidence on each of the three counts on the indictment. The fact that the appellant was acquitted on the first two counts is not a positive finding that those events did not occur but a finding that the jury was not satisfied beyond reasonable doubt that the acts alleged in those counts occurred, or occurred at the times or in the circumstances particularised in those counts.[25][25]See R v SBL [2009] QCA 130 at [31]-[32].