R v KAG and FAB

Case [2012] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAG & FAB [2012] QCA 194

PARTIES:

In CA No 223 of 2011:

R
v
KAG
(appellant)

In CA No 234 of 2011:

R
v
FAB
(appellant)

FILE NO/S:

CA No 223 of 2011
CA No 234 of 2011
DC No 131 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Convictions

ORIGINATING COURT:


District Court at Townsville

DELIVERED ON:

20 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2012

JUDGES:

Muir and White JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 234 of 2011 (FAB):
1.  Appeal against conviction allowed.
2.  Conviction on count 3 be set aside.

3.  Judgment of acquittal be entered.

In CA No 223 of 2011 (KAG):

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant (KAG) jointly charged with FAB with four counts of exposing a child to an indecent act (counts 1-4) – where appellant further charged with two counts of exposing a child to an indecent act (counts 5 and 6) and indecently dealing with a child (count 7) – where appellant acquitted on counts 1, 2 and 4 – where appellant convicted on counts 3, 5, 6 and 7 – where appellant submitted guilty verdicts were affront to logic and common sense – where appellant submitted that verdicts on counts 3, 5 ,6 and 7 inconsistent with verdicts on counts 1, 2 and 4 – where appellant submitted that given the inconsistencies in the evidence the jury could not be satisfied beyond reasonable doubt of the appellant’s guilt – whether jury’s verdict was compromised – whether guilty verdicts are unreasonable or insupportable having regard to the evidence – whether trial judge erred in allowing the jury to re-watch the pre-recorded cross examinations of the complainants

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where appellant (FAB) jointly charged with KAG with four counts of exposing a child to an indecent act (counts 1-4) – where appellant further charged with threatening to cause detriment to persons with intent to prevent them from leaving property (count 8) – where appellant acquitted on counts 1, 2 and 4 – where directed acquittal on count 8 – where appellant convicted on count 3 – where appellant was the mother of the complainants – where appellant submitted trial judge failed to properly direct the jury as to use that could be made of the evidence relating to count 8 – where appellant submitted that there was a risk the jury placed excessive weight on that evidence and reasoned the appellant had a tendency to condone and encourage the sexual abuse of her children – where respondent submitted proviso should apply – where appellant submitted trial judge should have given a Markuleski direction – where respondent submitted the direction given substantially…

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AGLC
R v KAG and FAB [2012] QCA 194
Case
[2012] QCA 194
Decision Date

CaseChat Overview and Summary

The Court of Appeal heard appeals from two appellants, KAG and FAB, who were jointly charged with multiple counts of exposing a child to an indecent act and other related offences. The case involved serious allegations of child abuse, with the appellants facing a total of eight counts. The trial resulted in partial acquittals and convictions for both appellants, leading to appeals on various grounds, including inconsistent verdicts and misdirections by the trial judge.

The central legal issues before the court were whether the jury's verdicts were compromised by inconsistencies and whether the trial judge's directions to the jury were adequate. For KAG, the appeal focused on the inconsistency between the acquittals on counts 1, 2, and 4 and the convictions on counts 3, 5, 6, and 7, arguing that the guilty verdicts were unreasonable. FAB's appeal centred on the trial judge's handling of evidence regarding count 8, particularly whether the judge properly directed the jury on the use of evidence relating to discreditable conduct and whether the verdict on count 3 was inconsistent with the acquittal on count 4.

The Court of Appeal found that while KAG's appeal did not succeed, the verdicts were not unreasonable or insupportable based on the evidence. The court held that the trial judge's decision to allow the jury to re-watch the pre-recorded cross-examinations of the complainants did not compromise the verdicts. For FAB, the court concluded that the trial judge did not adequately warn the jury against propensity reasoning and the use of evidence of discreditable conduct, leading to an improper direction. Consequently, the appeal against conviction was allowed, and the conviction on count 3 was set aside, with a judgment of acquittal entered in its place.

The final orders of the court were that in the case of FAB, the appeal against conviction was allowed, the conviction on count 3 was set aside, and a judgment of acquittal was to be entered. In the case of KAG, the appeal was dismissed, and no further orders were made.

Orders

Orders of the court

In CA No 234 of 2011 (FAB):

1. Appeal against conviction allowed.

2. Conviction on count 3 be set aside.

3. Judgment of acquittal be entered.

In CA No 223 of 2011 (KAG):

Appeal dismissed.

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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