R v HBH - [2013] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBH [2013] QCA 35

PARTIES:

R
v
HBH
(appellant)

FILE NO/S:

CA No 256 of 2012
DC No 438 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2013

JUDGES:

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

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16 and one count of indecent assault – where there was a delay of between three and ten years between the events complained of and the police investigation – where the trial judge directed the jury that delay could affect both memory and the appellant's ability to mount a defence – where the trial judge directed the jury that they must scrutinise the complainant's evidence with great care and that they must be satisfied beyond reasonable doubt of the truthfulness and reliability of her evidence regarding the appellant's conduct – where the appellant contends that the jury should have been warned that the delay made it dangerous to convict – whether the direction given was adequate in the circumstances – whether a miscarriage of justice has occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16 and one count of indecent assault – where the appellant was acquitted on two counts of indecent treatment and of an alternative of attempted indecent treatment – where the appellant appeals against the guilty verdicts as unreasonable on the basis that they were inconsistent with the acquittals – whether a doubt about the counts on which the appellant was acquitted should have led the jury to doubt the complainant's reliability and truthfulness in relation to the remaining counts – whether the verdicts can be reconciled – whether any miscarriage of justice has occurred

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

Longman v The Queen (1989) 168 CLR 79, [1989] HCA 60, cited
MacKenzie v The Queen (1996) 190 CLR 348, [1996] HCA 35, considered
R v Markuleski (2001) 52 NSWLR 82, [2001] NSWCCA 290, applied
Robinson v The Queen (1999) 197 CLR 162, [1999] HCA 42, considered

COUNSEL:

S L Kissick for the appellant
M R Byrne SC for the respondent

SOLICITORS:

McMillan Kelly and Thomas Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I…

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 HBH

Details

AGLC: R v HBH [2013] QCA 35
Case: [2013] QCA 35
Decision Date: 8 March 2013

CaseChat Overview and Summary

The case of R v HBH involved the appellant who stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16, and one count of indecent assault. The appellant appealed against his convictions, arguing that the trial judge's directions to the jury were inadequate and that the verdicts were inconsistent. The appeal was heard by the court, which needed to determine whether the trial judge's directions were sufficient, and whether the verdicts were inconsistent enough to warrant a new trial.

The legal issues before the court included whether the trial judge's direction to the jury was adequate given the significant delay between the events complained of and the investigation, and whether the jury should have been warned that the delay made it dangerous to convict. The court also needed to consider whether the acquittal on two counts of indecent treatment and an alternative count of attempted indecent treatment, coupled with the guilty verdicts on the other counts, amounted to an inconsistency that could not be reconciled.

The court found that the trial judge's direction to the jury was sufficient under the circumstances, noting that the judge had already directed the jury to scrutinise the complainant's evidence with great care and be satisfied beyond reasonable doubt of its truthfulness and reliability. The court held that the acquittal on certain counts did not necessarily undermine the reliability of the complainant's evidence in relation to the other counts, and that the verdicts, while seemingly inconsistent, could be reconciled. Therefore, the appeal against conviction was dismissed.

The court's final orders were to dismiss the appeal against the appellant's conviction, thereby upholding the jury's verdicts.

Orders

Orders of the court

Appeal against conviction 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBH [2013] QCA 35
PARTIES:	R v HBH (appellant)
FILE NO/S:	CA No 256 of 2012 DC No 438 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2013
JUDGES:	Margaret McMurdo P and Holmes JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16 and one count of indecent assault – where there was a delay of between three and ten years between the events complained of and the police investigation – where the trial judge directed the jury that delay could affect both memory and the appellant's ability to mount a defence – where the trial judge directed the jury that they must scrutinise the complainant's evidence with great care and that they must be satisfied beyond reasonable doubt of the truthfulness and reliability of her evidence regarding the appellant's conduct – where the appellant contends that the jury should have been warned that the delay made it dangerous to convict – whether the direction given was adequate in the circumstances – whether a miscarriage of justice has occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant stood trial on five counts of indecent treatment of a child under 12, one count of attempted indecent treatment of a child under 16 and one count of indecent assault – where the appellant was acquitted on two counts of indecent treatment and of an alternative of attempted indecent treatment – where the appellant appeals against the guilty verdicts as unreasonable on the basis that they were inconsistent with the acquittals – whether a doubt about the counts on which the appellant was acquitted should have led the jury to doubt the complainant's reliability and truthfulness in relation to the remaining counts – whether the verdicts can be reconciled – whether any miscarriage of justice has occurred Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Longman v The Queen (1989) 168 CLR 79, [1989] HCA 60, cited MacKenzie v The Queen (1996) 190 CLR 348, [1996] HCA 35, considered R v Markuleski (2001) 52 NSWLR 82, [2001] NSWCCA 290, applied Robinson v The Queen (1999) 197 CLR 162, [1999] HCA 42, considered
COUNSEL:	S L Kissick for the appellant M R Byrne SC for the respondent
SOLICITORS:	McMillan Kelly and Thomas Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent