R v Horvath - [2014] QCA 273

SUPREME COURT OF QUEENSLAND

CITATION:

R v Horvath [2014] QCA 273

PARTIES:

R
v
HORVATH, Sandor Jozsef
(appellant)

FILE NO/S:

CA No 35 of 2014
DC No 1794 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2014

JUDGES:

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

ORDERS:

1.   The appeal is allowed.

2.   The convictions on counts 2, 3 and 5 are set aside and verdicts of acquittal are entered.

3.   The sentences imposed on counts 1 and 4 are set aside.

4.   Within 14 days of this judgment:

a)   counsel are to provide submissions for the purposes of re-sentencing on counts 1 and 4, identifying any decision said to involve sentencing in comparable matters.

b)   the respondent is to provide a pre-sentence custody certificate.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by a jury of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years – where the appellant contended that the verdicts were unreasonable because the complainant’s evidence was internally inconsistent and also inconsistent with the preliminary complaint – whether the complainant's evidence was reliable – whether the verdicts were unreasonable

COUNSEL:

M A Green for the appellant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant was convicted by a jury of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years. (The offences were particularised as occurring at various times in 2009, before and after the complainant turned twelve on 26 August 2009.) He appealed his conviction on the ground that the verdicts were unreasonable, contending that the complainant’s evidence was internally inconsistent and was also inconsistent with the complaints she had made to others, so that the jury could not properly have been satisfied of her honesty and reliability.

The complainant’s 2009 statements about the offences

The complainant, B, was the daughter of friends of the appellant. He occasionally looked after her when her parents were working, and sometimes when her parents engaged in an altercation (as they seem fairly frequently to have done) came to their Nerang house to intervene. On some occasions when her parents fought, B went to stay with the family of her school friend, J. B’s twelfth birthday was such an instance. That evening, B contacted J’s family and made arrangements for them to pick her up from a service station. The appellant took her to the service station and waited with her…

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 Horvath

Details

AGLC: R v Horvath [2014] QCA 273
Case: [2014] QCA 273
Decision Date: 31 October 2014

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Horvath, against her conviction by a jury on five counts of indecent treatment of a child under 16, with the aggravating circumstance that the child was under 12 years of age in three of the instances. The primary contention was that the verdicts were unreasonable given the evidence presented, particularly the inconsistencies in the complainant’s testimony and the preliminary complaint. The appeal sought to have the convictions set aside, arguing that the evidence did not support a guilty verdict beyond reasonable doubt.

The court was required to determine whether the complainant's evidence was reliable and whether the jury's verdicts were unreasonable in light of the evidence. The appellant argued that the complainant's testimony was internally inconsistent and also inconsistent with the preliminary complaint, suggesting that the jury may have reached a conclusion without a sound basis in the evidence. The court needed to assess the weight and credibility of the complainant's evidence, and whether the jury's decision was so unreasonable that it ought not be allowed to stand.

In allowing the appeal, the court found that the complainant's evidence had significant inconsistencies and discrepancies which undermined its reliability. The court determined that these inconsistencies were such that the jury's verdicts could not be supported by the evidence presented. Consequently, the convictions on counts 2, 3, and 5 were set aside, and verdicts of acquittal were entered. Additionally, the sentences imposed on counts 1 and 4 were set aside. The court ordered that within 14 days, counsel were to provide submissions for re-sentencing on counts 1 and 4, and the respondent was to provide a pre-sentence custody certificate.

Orders

Orders of the court

1. The appeal is allowed.

2. The convictions on counts 2, 3 and 5 are set aside and verdicts of acquittal are entered.

3. The sentences imposed on counts 1 and 4 are set aside.

4. Within 14 days of this judgment:

a) counsel are to provide submissions for the purposes of re-sentencing on counts 1 and 4, identifying any decision said to involve sentencing in comparable matters.

b) the respondent is to provide a pre-sentence custody certificate.

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 Horvath [2014] QCA 273
PARTIES:	R v HORVATH, Sandor Jozsef (appellant)
FILE NO/S:	CA No 35 of 2014 DC No 1794 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2014
JUDGES:	Holmes and Morrison JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, Holmes JA and Philip McMurdo J concurring as to the orders made, Morrison JA dissenting
ORDERS:	1. The appeal is allowed. 2. The convictions on counts 2, 3 and 5 are set aside and verdicts of acquittal are entered. 3. The sentences imposed on counts 1 and 4 are set aside. 4. Within 14 days of this judgment: a) counsel are to provide submissions for the purposes of re-sentencing on counts 1 and 4, identifying any decision said to involve sentencing in comparable matters. b) the respondent is to provide a pre-sentence custody certificate.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by a jury of five counts of indecent treatment of a child under 16, in three instances with the aggravating circumstance that she was under 12 years – where the appellant contended that the verdicts were unreasonable because the complainant’s evidence was internally inconsistent and also inconsistent with the preliminary complaint – whether the complainant's evidence was reliable – whether the verdicts were unreasonable
COUNSEL:	M A Green for the appellant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent