R v K - [1995] QCA 226

[1995] QCA 226

DAVIES JA
de JERSEY J
AMBROSE J

CA No 89 of 1995

THE QUEEN

K Appellant

BRISBANE

DATE 21/04/95

JUDGMENT

DAVIES JA: The appellant appeals against his conviction for indecently dealing with a boy under the age of 16. He also seeks leave to appeal against his sentence which was one of 18 months imprisonment for that offence. The appellant was charged with five offences; two of indecently dealing with a boy under the age of 16, of which the offence of which he was convicted was the second; two of sodomy with a boy under the age of 16, and one of wilfully exposing a boy under the age of 16 to an indecent videotape.

Each of the charges alleged as a circumstance of aggravation that the complainant was in the appellant's care. Now the learned trial Judge directed that that circumstance of aggravation be deleted from the indictment in respect of the second count, that is the one in respect of which he was convicted when it emerged during the course of the complainant's evidence that at the time when he said this offence was committed other people including his parents were at the property where it was said to have occurred.

The only evidence against the appellant was that of the complainant, AD, who at the date of trial was 14 years of age. He was 13 at the time of the commission of the alleged offences. The appellant is the complainant's uncle by marriage. He did not give or call evidence at the trial.

The appeal against conviction is based on alleged inconsistency of verdicts. It was submitted on the appellant's behalf that there was no rational basis for the apparently inconsistent verdicts of not guilty on the first, third, fourth and fifth charges on the one hand, and on the other guilty on the second. It was submitted that there were no distinguishing features between the evidence on the second charge and that on the other charges, and that the only reasonable inference was that the verdict was a compromise one, being a conviction on the least serious charge.

As this Court has pointed out in R v. Jones, (CA No 264 of 1992), it is proper for an appellate Court to scrutinise the evidence carefully in cases where a jury has convicted on some counts and acquitted on others. Such careful scrutiny, their Honours said, is clearly called for in cases where there is an absence of corroborating evidence as in this case, and where consequently, acceptance of the complainant's evidence is essential to any conviction. But as the Court there also pointed out, each case must be determined on its own facts, there is no rule of law that a conviction must be regarded as unsafe and unsatisfactory merely because a jury have obviously rejected the complainant's evidence with respect to some counts on the indictment.

In the present case, it is possible, in my view, to explain…

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 [1995] QCA 226
Case: [1995] QCA 226
Decision Date: 21 April 1995

CaseChat Overview and Summary

In the case of R v K, the appellant appeals against his conviction for indecently dealing with a boy under the age of 16 and seeks leave to appeal against his sentence of 18 months imprisonment. The appellant was charged with five offences related to a boy, including indecently dealing with a boy under the age of 16, sodomy with a boy under the age of 16, and wilfully exposing a boy under the age of 16 to an indecent videotape. The trial judge directed that the circumstance of aggravation, that the complainant was in the appellant's care, be deleted from the indictment in respect of the second count, as other people, including the complainant's parents, were present at the property where the offence was said to have occurred.

The appeal against conviction is based on the alleged inconsistency of the verdicts. The appellant argued that there was no rational basis for the jury's verdict of not guilty on the first, third, fourth, and fifth charges, but guilty on the second. The court found that it was possible to explain rationally the jury's failure to be satisfied beyond reasonable doubt on counts 1, 3, 4, and 5, but to be satisfied to that standard in respect of count 2. The court determined that the appeal against conviction should be dismissed, and the appeal against sentence should also be refused.

The court found that the appellant, who had a number of previous convictions for serious offences, had rehabilitated himself and had not been convicted of any offences since 1983. The court considered the appellant's work record, injuries, and the nature of the offence of which he was convicted, which was towards the lower end of the range of offences of this kind. The court concluded that the sentence of 18 months imprisonment, while at the higher end of the sentencing range, was not so high as to be outside the range of a sound sentencing discretion.

Orders