CA No 145 of 2017 CA No 102 of 2017 DC No 375 of 2016
DIVISION:
Court of Appeal
PROCEEDINGS:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Townsville – Date of Conviction: 10 March 2017; Date of Sentence: 27 April 2017 (Durward SC DCJ)
DELIVERED ON:
21 September 2018
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2018
JUDGES:
Morrison and McMurdo JJA and Bowskill J
ORDERS:
1. The appeal against conviction in CA No. 145 of 2017 is dismissed.
2. The application for leave to appeal against sentence in CA No. 102 of 2017 is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted after a three day trial of one count of maintaining an unlawful sexual relationship with a child, three counts of indecent treatment and one count of permitting a person under 18 years to sodomise him – where the learned trial judge referred to a letter put in evidence through the complainant’s mother in the summing up – where the complainant’s mother gave evidence that the letter had been left for her on the appellant’s laptop – where it was suggested that the letter was a fabrication – where the learned trial judge directed the jury that there was no dispute about the contents of the letter and that no evidence existed to contradict the prosecution case that the letter had been prepared by the appellant – where it was submitted that the directions effectively reversed the onus of proof as the jury were asked to infer that the prosecution’s case was stronger due to the absence of contradictory evidence – where the learned trial judge read the letter aloud to the jury during the summing up and asked the rhetorical question “do you disbelieve her?” referring to the evidence of the complainant’s mother – where it was submitted that to pose the questions in the way done was objectionable as per Palmer v The Queen – whether a miscarriage of justice occurred
APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to 15 years’ imprisonment on count 1 and not further punished on counts 2-5 and 7 as each of those counts formed part of the particulars of count 1, together constituting the maintenance of a sexual relationship over a six and a half year period – where the applicant was convicted and sentenced for the entirety of that period notwithstanding that some of the offending had occurred after the complainant turned 16 – where count 7 was comprised of an act of sodomy under s 208 of the Criminal Code (Qld) which had been repealed – where it was submitted that the finding by the learned sentencing judge that the period of maintaining a sexual relationship was…
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.
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Details
AGLC
R v HBT [2018] QCA 227
Case
[2018] QCA 227
Decision Date
CaseChat Overview and Summary
The appellant was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child, three counts of indecent treatment, and one count of permitting a person under 18 years to sodomise him. The appellant appealed against his conviction and sentence. The court examined whether there was a miscarriage of justice due to the trial judge’s directions regarding a letter in evidence and whether the sentence was manifestly excessive.
The court considered whether the trial judge misdirected the jury by referring to the letter and suggesting that there was no dispute about its contents, effectively reversing the onus of proof. The court also examined whether the trial judge's rhetorical question during the summing up was objectionable. Additionally, the court assessed whether the sentence was manifestly excessive, particularly considering the period of maintaining the relationship and the inclusion of an offence that had been repealed.
The court concluded that the trial judge’s directions did not constitute a miscarriage of justice. The court found that the rhetorical question did not prejudice the fairness of the trial. Regarding the sentence, the court held that the sentence was not manifestly excessive despite the inclusion of the repealed offence and the period of maintaining the relationship. The court determined that the sentence reflected the severity of the offences and the breach of trust.
The orders of the court were to dismiss the appeal against conviction and to refuse the application for leave to appeal against the sentence.
Orders
Orders of the court
1. The appeal against conviction in CA No. 145 of 2017 is dismissed.
2. The application for leave to appeal against sentence in CA No. 102 of 2017 is refused.