R v Haq - [2008] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAQ [2008] QCA 234

PARTIES:

R
v
HAQ
(appellant)

FILE NO/S:

CA No 298 of 2007
DC No 929 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2008

JUDGES:

McMurdo P, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

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 – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appellant convicted of two counts of incest and one count of aggravated indecent dealing – offences committed against appellant's younger sister – identification evidence led from complainant's sister (E), who shared the bedroom with the complainant where the offences occurred – whether evidence should have been excluded on the basis that its prejudicial nature outweighed its probative value

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – evidence given by the complainant and E about sexual abuse perpetrated on them by their father and another brother –complainant's false allegation of sexual misconduct by father brought out by defence counsel to discredit complainant – evidence may have suggested sexual abuse was "rife" within the family of the appellant and complainant – evidence of different type of sexual abuse perpetrated by appellant's brother used by Crown to exclude him as the perpetrator of these offences – whether evidence should have been excluded

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – offences allegedly occurred over 30 years before trial – a witness had memory difficulties – whether the verdicts were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant sentenced to an effective term of three years imprisonment with no suspension or parole eligibility date – appellant a juvenile for some offences – offences occurred over 30 years before trial – appellant not remorseful and did not co-operate with authorities – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 222, s 668E(1)
Evidence Act 1977 (Qld), s 130

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v Currie, Court of Criminal Appeal, Qld, CA No 313 of 1990, 21 December 1990, cited
R v KU & Ors, ex parte A-G (Qld)[2008] QCA…

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 Haq

Details

AGLC: R v HAQ [2008] QCA 234
Case: [2008] QCA 234
Decision Date: 8 August 2008

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for two counts of incest and one count of aggravated indecent dealing with his younger sister. The trial judge convicted the appellant based on the evidence of the complainant and her sister, who shared the bedroom where the offences occurred. The appellant challenged the conviction on several grounds, including the improper admission of evidence. He argued that the evidence of sexual abuse within the family was overly prejudicial and should have been excluded. The complainant and her sister also gave evidence about sexual abuse perpetrated on them by their father and another brother, which the appellant claimed should have been excluded.

The court considered the arguments regarding the prejudicial nature of the evidence. It determined that the evidence was relevant to the circumstances of the case and did not outweigh its probative value. The court found that the identification evidence from the complainant's sister was crucial in establishing the context and circumstances of the offences. The court also examined the evidence of other sexual abuse within the family and concluded that it was relevant to the credibility of the complainant and the appellant's brother, and therefore admissible. The court rejected the appellant's argument that the verdicts were unreasonable, noting that the trial judge had carefully considered the evidence and the difficulties in recalling events from over 30 years prior.

The court also considered the appeal against the sentence, which was an effective term of three years imprisonment with no suspension or parole eligibility date. The appellant argued that the sentence was manifestly excessive given the delay in reporting the offences, his status as a juvenile for some offences, and his lack of remorse. The court found that the sentence was within the appropriate range for the offences and took into account the appellant's lack of remorse and non-cooperation with authorities.

In conclusion, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court upheld the trial judge's decision on the admission of evidence and the reasonableness of the verdicts, and found the sentence to be appropriate given the circumstances.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

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 HAQ [2008] QCA 234
PARTIES:	R v HAQ (appellant)
FILE NO/S:	CA No 298 of 2007 DC No 929 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2008
JUDGES:	McMurdo P, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	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 – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appellant convicted of two counts of incest and one count of aggravated indecent dealing – offences committed against appellant's younger sister – identification evidence led from complainant's sister (E), who shared the bedroom with the complainant where the offences occurred – whether evidence should have been excluded on the basis that its prejudicial nature outweighed its probative value CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – evidence given by the complainant and E about sexual abuse perpetrated on them by their father and another brother –complainant's false allegation of sexual misconduct by father brought out by defence counsel to discredit complainant – evidence may have suggested sexual abuse was "rife" within the family of the appellant and complainant – evidence of different type of sexual abuse perpetrated by appellant's brother used by Crown to exclude him as the perpetrator of these offences – whether evidence should have been excluded CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – offences allegedly occurred over 30 years before trial – a witness had memory difficulties – whether the verdicts were unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant sentenced to an effective term of three years imprisonment with no suspension or parole eligibility date – appellant a juvenile for some offences – offences occurred over 30 years before trial – appellant not remorseful and did not co-operate with authorities – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 222, s 668E(1) Evidence Act 1977 (Qld), s 130 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v Currie, Court of Criminal Appeal, Qld, CA No 313 of 1990, 21 December 1990, cited R v KU & Ors, ex parte A-G (Qld)[2008] QCA…