R v K - [1998] QCA 262

COURT OF APPEAL [1998] QCA 262

McMURDO P

MACKENZIE J

HELMAN J

CA No 168 of 1998

THE QUEEN

K Appellant

BRISBANE

DATE 14/08/98

JUDGMENT

THE PRESIDENT: The appellant was convicted of four counts of indecently dealing with a girl under the age of 14 years in the District Court at Maroochydore on 13 May 1998. The sole ground of appeal against conviction is that the verdict of the jury in the circumstances was unsafe and unsatisfactory.

The expression "unsafe and unsatisfactory" has become a common way of referring to the ground of appeal set out in section 668E(1) of the Criminal Code: namely, that the Court on an appeal against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

In R v. Gipp, unreported, HCA, delivered 16 June 1998, Gaudron J said at paragraph 17, "The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that although there was evidence to sustain a verdict of guilty, the jury ought nonetheless have entertained a reasonable doubt as to guilt."

It is necessary for the Court to examine the whole of the evidence in deciding whether a verdict in a particular case is unsafe and unsatisfactory.

The offences occurred between 1 June 1986 and 31 December 1989. The complainant was born on 7 March 1979. She was 19 at the time of trial and between seven and 10 when the offences occurred.

Count one is particularised in this way: the complainant was at the house of D in Mount Isa. All the adults in the house went out except the appellant. The complainant went to sleep and later woke up to find the appellant interfering with her in the genital area.

The complainant gave evidence consistent with the particulars. She said there were four girls sleeping in the room. She went out to get a drink of water wearing only a top without knickers. The appellant saw her. She returned to the bedroom to sleep. She was later awakened by the appellant wriggling fingers inside her vagina. Her top was off. He said, "It's a secret, don't tell anyone. It's something between you and me". When she woke in the morning her top was on again. She said she was eight and in grade two when this incident occurred.

The first inconsistency complained of by the appellant is that she was inconsistent as to her age in respect of count one. It is by no means clear from the record that the complainant accepted that she told police during a phone-in for victims of sexual abuse in 1996 that she was eight or nine at the time. In any case the complainant's mother, Mrs B, recalled first meeting the appellant in 1986 and that the appellant shared a house with D. Towards the end…

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 K

Details

AGLC: R v K [1998] QCA 262
Case: [1998] QCA 262
Decision Date: 14 August 1998

CaseChat Overview and Summary

The case of R v K involves an appeal by the appellant against his conviction for four counts of indecently dealing with a girl under the age of 14 years, which was determined in the District Court at Maroochydore on 13 May 1998. The central issue of the appeal is the contention that the jury's verdict was "unsafe and unsatisfactory," a ground of appeal that invokes section 668E(1) of the Criminal Code, allowing the Court to set aside a guilty verdict if it is unreasonable or unsupported by the evidence. The appellant's argument hinges on inconsistencies in the complainant's testimony and the lack of a timely complaint.

The court examined the evidence presented, which included detailed accounts from the complainant regarding the incidents of abuse that occurred between 1 June 1986 and 31 December 1989. The complainant, who was between seven and ten years old at the time of the offences, testified about specific instances of abuse by the appellant. The court considered the complainant's mother's testimony, which provided corroborative details about the events and the appellant's involvement. The appellant denied all allegations and could not recall any instances of improper conduct.

The court found that the inconsistencies and the delayed reporting of the offences were understandable given the complainant's young age at the time of the incidents and the potential threats made by the appellant. The court emphasized that the jury had the opportunity to observe both the complainant and the appellant during the trial and could reasonably assess their credibility. The court concluded that the inconsistencies did not undermine the complainant's overall credibility and that the jury was properly directed on how to consider the evidence.

In dismissing the appeal, the court highlighted that the trial judge provided balanced and fair directions to the jury, ensuring that the defence case was fully presented. The court also noted the difficulties faced by an accused in such cases, particularly when the allegations involve historical abuse and the complainant was a young child at the time. The court found that the evidence was sufficient to support the jury's verdict and that the appellant's appeal against the sentence was also without merit.

The final orders of the court were to dismiss the appeal against conviction and the application for leave to appeal against sentence.

Orders