R v Gaz - [2016] QCA 229

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAZ [2016] QCA 229

PARTIES:

R
v
GAZ
(appellant)

FILE NO/S:

CA No 142 of 2016
DC No 12 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 12 May 2016

DELIVERED ON:

Orders delivered ex tempore 9 September 2016
Reasons delivered 13 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2016

JUDGES:

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

ORDERS:

Delivered ex tempore on 9 September 2016:

1.   The appeal is allowed.

2.   The verdict of guilty is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of indecent treatment of a child – where the complainant was very young and gave three different accounts of the offending – where the first preliminary complaint to a kindergarten teacher was unprompted and spontaneous – where the subsequent complaint to her mother was unrelated – where both complaints were consistent with the complainant’s evidence in cross-examination – where the jury were entitled reject the appellant’s evidence – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant gave two recorded statements to police – where the appellant contends the primary judge should have exercised the discretion to exclude the evidence as the complainant’s account was unlikely to be reliable – where defence counsel was fettered in challenging the differing accounts in the statements in cross-examination as the complainant could not recall them – where defence counsel did not apply to exclude the evidence at trial and this was a reasonable forensic decision

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant’s mother made repeated statements in cross-examination that the appellant pleaded with her not to go to police when first made aware of the complainant’s allegations – where the mother stated in cross-examination that this was evidence of guilt – where the mother stated in cross-examination that the appellant was so aggressive that she was in fear of her life – where the judge was not invited to, and did not, direct the jury to disregard this evidence – whether there was a miscarriage of justice

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Cumner [1994] QCA 270, cited
R…

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 Gaz

Details

AGLC: R v Gaz [2016] QCA 229
Case: [2016] QCA 229
Decision Date: 9 September 2016

CaseChat Overview and Summary

The appellant was convicted of indecent treatment of a child and appealed against the conviction. The appeal was heard in the Court of Appeal, which needed to decide whether the verdict was unreasonable or insupportable, given the evidence, and whether the admission or rejection of certain evidence amounted to a miscarriage of justice.

The Court of Appeal considered that the complainant's account of the offending was consistent and reliable, despite her being very young and giving three different accounts. The jury were entitled to reject the appellant's evidence and accept the complainant's account as reliable beyond reasonable doubt. The court also found that the defence counsel's decision not to apply to exclude the complainant's recorded statements from evidence was reasonable. Furthermore, the mother's evidence about the appellant's aggressive behaviour and pleas not to go to police, although not directed to be disregarded by the trial judge, did not amount to a miscarriage of justice.

The Court of Appeal allowed the appeal, set aside the guilty verdict and ordered a retrial.

Orders

Orders of the court

Delivered ex tempore on 9 September 2016:

1. The appeal is allowed.

2. The verdict of guilty is set aside.

3. A retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons I consider the appeal should be allowed, the guilty verdict set aside and a retrial ordered.The relevant evidence and other aspects of the trial It is necessary to commence a discussion of these grounds of appeal by reviewing the relevant evidence and other aspects of the trial.The teacher’s evidence The complainant’s kindergarten teacher gave evidence that on 31 July 2014 a boy pulled his pants down in the kindergarten playground and urinated. The teacher intervened and told him that he should do this in the toilet. The complainant spontaneously commented, “I touched my Daddy’s doodle.” The teacher looked at the complainant who said, “It’s true. It’s true.” The children giggled and then talked about something else. The teacher reported the matter to the centre director and documented it.[1] In cross-examination she agreed the complainant “was a bit of a giggly child and she was just laughing because they were in a group of children.”[2][1]T1-56 – T1-57, AB 84 – 85.[2]T1-58, l 9 – l 10, AB 86.The evidence of the complainant’s mother The complainant’s mother gave evidence that the complainant was born in April 2010. The mother separated from the appellant in February 2012. She explained the arrangements made for the appellant to have access to the complainant. She agreed that he moved to the Rockhampton area in October 2013, just after the first date in the indictment, and that the complainant then visited him at his home. On 4 August 2014 the complainant said to her words to the effect of, “Daddy gets me to pull his pants down and play with his doodle.”[3] The mother asked, if she phoned the appellant, would the complainant tell him what she had said. The complainant agreed. The mother phoned the appellant, asked the complainant to tell him what she had told her and the complainant did so.[3]T1-23, l 26 – l 27, AB 51. In cross-examination defence counsel suggested that the appellant tried to arrange mediation so that he could have access to the complainant. The mother insisted that she initiated mediation.[4] When defence counsel again suggested that the appellant initiated mediation but she did not wish to participate, she stated that this was “completely incorrect” and that she had “the actual documents and information from [a]... government-regulated organisation.” She stated that she could easily get this documentation and offered to do so.[5] Defence counsel asked her to look at a letter from the Rockhampton Family Relationship Centre. She agreed it stated, “We are writing to advise you that your joint FDR is no longer proceeding as the other party to the dispute, [the mother], has indicated to us that they no longer wish to participate.”[6] Whilst she accepted that was the effect of the letter, she did not accept that she was unwilling to proceed with mediation and maintained that she had never declined to do so. She insisted that she could, immediately on leaving court, obtain documentation to demonstrate that prior to the offending she was co-operative in facilitating access arrangements. She had allowed him to move into her house after his return to Rockhampton to help him get on his feet. She financially assisted him to relocate to Rockhampton where she was working and she and the complainant were living. She agreed he did not stay with her long, adding that there was “a lot of history and background there...it was not a safe environment for my daughter.”[7] Defence counsel again suggested that, for one or two months after the appellant relocated to Rockhampton, she did not allow him any access to his daughter. She denied this, adding that during the lunch break she contacted Relationships Australia and had documents that clearly stated that on 14 July 2014 the appellant said he no longer wished to proceed with mediation.[8] She denied stopping his access to the complainant in July 2014. She again denied that he applied for mediation and repeated that she had an email which recorded that he advised he was not willing to proceed. She could retrieve it from her work computer and prove that defence counsel’s contention was wrong.[9][4]T1-26, AB 54.[5]T1-27, AB 55.[6]T1-30, AB 58.[7]T1-31, AB 59.[8]T1-35, AB 63.[9]T1-39, AB 67.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v GAZ [2016] QCA 229
PARTIES:	R v GAZ (appellant)
FILE NO/S:	CA No 142 of 2016 DC No 12 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 12 May 2016
DELIVERED ON:	Orders delivered ex tempore 9 September 2016 Reasons delivered 13 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2016
JUDGES:	Margaret McMurdo P and Fraser JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 9 September 2016: 1. The appeal is allowed. 2. The verdict of guilty is set aside. 3. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of indecent treatment of a child – where the complainant was very young and gave three different accounts of the offending – where the first preliminary complaint to a kindergarten teacher was unprompted and spontaneous – where the subsequent complaint to her mother was unrelated – where both complaints were consistent with the complainant’s evidence in cross-examination – where the jury were entitled reject the appellant’s evidence – where the jury were entitled to accept the complainant’s account as reliable beyond reasonable doubt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant gave two recorded statements to police – where the appellant contends the primary judge should have exercised the discretion to exclude the evidence as the complainant’s account was unlikely to be reliable – where defence counsel was fettered in challenging the differing accounts in the statements in cross-examination as the complainant could not recall them – where defence counsel did not apply to exclude the evidence at trial and this was a reasonable forensic decision CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the complainant’s mother made repeated statements in cross-examination that the appellant pleaded with her not to go to police when first made aware of the complainant’s allegations – where the mother stated in cross-examination that this was evidence of guilt – where the mother stated in cross-examination that the appellant was so aggressive that she was in fear of her life – where the judge was not invited to, and did not, direct the jury to disregard this evidence – whether there was a miscarriage of justice Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Cumner [1994] QCA 270, cited R…