R v Har - [2008] QCA 404

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAR [2008] QCA 404

PARTIES:

R
v
HAR
(appellant)

FILE NO/S:

CA No 183 of 2008
DC No 178 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2008

JUDGES:

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

ORDERS:

1.    Dismiss the appellant's appeal against conviction on count 4 on the indictment.

2.    Allow the appeal against the appellant's conviction on count 3 in the indictment, set aside the verdict and conviction on that count, and enter a judgment and verdict of acquittal.

3.    Grant the application for leave to appeal against sentence, allow the appeal, and set aside the sentence imposed in the District Court.

4.    Sentence the appellant on count 4 in the indictment to imprisonment for a term of 12 months.

5.    Fix the date upon which the appellant is eligible for parole at 16 December 2008.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant tried on four counts of indecent dealing – where appellant acquitted on counts 1 and 2 and convicted on counts 3 and 4 – where counts 1, 2 and 3 relied entirely upon the evidence of the complainant – where count 4 relied largely upon the evidence of a witness who viewed the act via webcam while engaged in an online chat with the appellant – where evidence by the complainant was at times inconsistent and vague – whether the convictions on counts 3 and 4 could be supported having regard to the evidence – whether the convictions on counts 3 and 4 could be reconciled with the acquittals on counts 1 and 2

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL – WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED – where Court allowed an appeal against conviction – whether conviction could be explained by an advantage had by the jury in seeing the evidence at trial first hand – whether a retrial should be ordered or a verdict of acquittal entered

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where appellant convicted of two offences and sentenced to terms of imprisonment – where appellant successfully appealed to this Court against one conviction but not the other – where sentence imposed by the primary judge was referrable to both convictions – consideration of the factors relevant to imposing sentence on the appellant who had been convicted of one count of indecent dealing, of a child under 16 years, who was then under 12 years and under the appellant’s care

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 Har

Details

AGLC: R v Har [2008] QCA 404
Case: [2008] QCA 404
Decision Date: 12 December 2008

CaseChat Overview and Summary

The appellant, Har, was tried in the District Court on four counts of indecent dealing. He was acquitted on counts 1 and 2, but convicted on counts 3 and 4. The convictions on counts 3 and 4 were challenged on the grounds that the verdicts were unreasonable or not supportable having regard to the evidence. Counts 1, 2 and 3 were based solely on the complainant’s evidence, which was inconsistent and vague, while count 4 was based largely on the evidence of a witness who viewed the act via webcam during an online chat with the appellant. The appellant appealed against his convictions on counts 3 and 4 and the sentences imposed by the District Court.

The court had to decide whether the convictions on counts 3 and 4 were supportable having regard to the evidence, particularly the complainant's inconsistent and vague evidence, and whether they could be reconciled with the acquittals on counts 1 and 2. The court also needed to consider the procedure on appeal, specifically whether the conviction on count 3 could be explained by the advantage had by the jury in seeing the evidence at trial first hand, and whether a retrial should be ordered or a verdict of acquittal entered. The court also had to consider the grounds for interfering with the sentence imposed by the District Court.

The court dismissed the appeal against the conviction on count 4, finding that the evidence was sufficient to support the conviction. However, the appeal against the conviction on count 3 was allowed, and the conviction was set aside and a verdict of acquittal was entered. The court considered that the conviction on count 3 could be explained by the advantage had by the jury in seeing the evidence at trial first hand. The appeal against the sentence was allowed, and the appellant was sentenced to imprisonment for a term of 12 months on count 4. The court fixed the date upon which the appellant is eligible for parole at 16 December 2008.

Orders

Orders of the court

1. Dismiss the appellant's appeal against conviction on count 4 on the indictment.

2. Allow the appeal against the appellant's conviction on count 3 in the indictment, set aside the verdict and conviction on that count, and enter a judgment and verdict of acquittal.

3. Grant the application for leave to appeal against sentence, allow the appeal, and set aside the sentence imposed in the District Court.

4. Sentence the appellant on count 4 in the indictment to imprisonment for a term of 12 months.

5. Fix the date upon which the appellant is eligible for parole at 16 December 2008.

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.

CITATION:	R v HAR [2008] QCA 404
PARTIES:	R v HAR (appellant)
FILE NO/S:	CA No 183 of 2008 DC No 178 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	12 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2008
JUDGES:	Holmes and Fraser JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appellant's appeal against conviction on count 4 on the indictment. 2. Allow the appeal against the appellant's conviction on count 3 in the indictment, set aside the verdict and conviction on that count, and enter a judgment and verdict of acquittal. 3. Grant the application for leave to appeal against sentence, allow the appeal, and set aside the sentence imposed in the District Court. 4. Sentence the appellant on count 4 in the indictment to imprisonment for a term of 12 months. 5. Fix the date upon which the appellant is eligible for parole at 16 December 2008.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where appellant tried on four counts of indecent dealing – where appellant acquitted on counts 1 and 2 and convicted on counts 3 and 4 – where counts 1, 2 and 3 relied entirely upon the evidence of the complainant – where count 4 relied largely upon the evidence of a witness who viewed the act via webcam while engaged in an online chat with the appellant – where evidence by the complainant was at times inconsistent and vague – whether the convictions on counts 3 and 4 could be supported having regard to the evidence – whether the convictions on counts 3 and 4 could be reconciled with the acquittals on counts 1 and 2 CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL – WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED – where Court allowed an appeal against conviction – whether conviction could be explained by an advantage had by the jury in seeing the evidence at trial first hand – whether a retrial should be ordered or a verdict of acquittal entered CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where appellant convicted of two offences and sentenced to terms of imprisonment – where appellant successfully appealed to this Court against one conviction but not the other – where sentence imposed by the primary judge was referrable to both convictions – consideration of the factors relevant to imposing sentence on the appellant who had been convicted of one count of indecent dealing, of a child under 16 years, who was then under 12 years and under the appellant’s care