R v Had - [2006] QCA 464

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAD [2006] QCA 464

PARTIES:

R
v
HAD
(appellant/applicant)

FILE NO/S:

CA No 172 of 2006
DC No 131 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

10 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2006

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Williams JA and Fryberg J concurring as to the orders made, Jerrard JA dissenting in part

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where the appellant was convicted after trial on multiple counts of sexual offences against young children including his own daughter – of the 31 counts on which the appellant was convicted, he was sentenced to a total of 13 years imprisonment to be served concurrently – where the appellant contends that the convictions on the two counts of rape were unsafe and unsatisfactory as they were based on uncorroborated evidence – the appellant also contends that his legal representatives did not pursue certain lines of cross-examination of crown witnesses – whether the convictions of rape are unsafe and unsatisfactory – whether the sentence of 13 years imprisonment is manifestly excessive in all the circumstances

R v LJ [2004] QCA 114; CA No 407 of 2003, 14 April 2004, applied
R v P S Shaw [1995] 2 Qd R 97, distinguished

R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
D R MacKenzie for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted after a trial on 26 April 2006 of one count of sodomy, eight counts of incest, two counts of rape and one count of indecent treatment of a child. He had at the outset of the trial pleaded guilty to a further 19 counts involving sexual abuse of young children. The one count of sodomy, the two counts of rape and seven of the counts of incest involved the appellant's natural daughter. She was aged about six when the offence of sodomy was committed and about 18 when the offences of rape occurred; the other offences occurred when she was aged 17 to 18 years. The remaining count of incest and the count of indecent treatment involved the appellant's young niece.

The other counts involved his stepdaughter, the niece, and two other girls who were friends of the other victims. All the offences involving those four girls occurred when they were under the age of 16 years. There were numerous counts of carnal knowledge. There were also two counts of maintaining a…

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 Had

Details

AGLC: R v Had [2006] QCA 464
Case: [2006] QCA 464
Decision Date: 10 November 2006

CaseChat Overview and Summary

In the matter of R v Had, the appellant was convicted following a trial on multiple counts of sexual offences against young children, including his own daughter. He was found guilty on 31 counts and sentenced to a total of 13 years imprisonment, to be served concurrently. The appellant appealed against his conviction on two counts of rape, arguing that the convictions were unsafe and unsatisfactory because they were based on uncorroborated evidence. Additionally, he contended that his legal representatives did not adequately cross-examine certain witnesses, which could have led to a different outcome in the trial. The appeal and sentence were considered by the court.

The legal issues before the court were whether the convictions for rape were indeed unsafe and unsatisfactory, and if the sentence of 13 years imprisonment was manifestly excessive. The appellant argued that the evidence presented against him was uncorroborated and insufficient to secure a conviction. He also contended that his legal representatives failed to properly cross-examine witnesses, which could have potentially weakened the prosecution's case. The court needed to determine whether these arguments had merit and if they were sufficient grounds for overturning the convictions or reducing the sentence.

In addressing the appeal, the court found that the convictions were safe and satisfactory, and that there was no basis to interfere with the jury's verdicts. The court determined that the evidence, although uncorroborated, was sufficient for the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences. Regarding the sentence, the court found that the sentence of 13 years imprisonment was not manifestly excessive in the circumstances of the case. The appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Consequently, the appeal against the convictions was dismissed, and the application for leave to appeal against the sentence was refused. The appellant's convictions and sentence remain in place, and he is required to serve the 13 years imprisonment concurrently. The court upheld the trial judge's decision, finding that the evidence was sufficient to support the convictions and that the sentence was appropriate given the gravity of the offences.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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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CITATION:	R v HAD [2006] QCA 464
PARTIES:	R v HAD (appellant/applicant)
FILE NO/S:	CA No 172 of 2006 DC No 131 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	10 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2006
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Williams JA and Fryberg J concurring as to the orders made, Jerrard JA dissenting in part
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where the appellant was convicted after trial on multiple counts of sexual offences against young children including his own daughter – of the 31 counts on which the appellant was convicted, he was sentenced to a total of 13 years imprisonment to be served concurrently – where the appellant contends that the convictions on the two counts of rape were unsafe and unsatisfactory as they were based on uncorroborated evidence – the appellant also contends that his legal representatives did not pursue certain lines of cross-examination of crown witnesses – whether the convictions of rape are unsafe and unsatisfactory – whether the sentence of 13 years imprisonment is manifestly excessive in all the circumstances R v LJ [2004] QCA 114; CA No 407 of 2003, 14 April 2004, applied R v P S Shaw [1995] 2 Qd R 97, distinguished R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, considered
COUNSEL:	The appellant/applicant appeared on his own behalf D R MacKenzie for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent