R v Kay - [2006] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kay [2006] QCA 302

PARTIES:

R
v
KAY, Brian James
(appellant/applicant)

FILE NO/S:

CA No 316 of 2005
DC No 248 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

22 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2006

JUDGES:

McMurdo P, Fryberg and Douglas JJ
Joint reasons for judgment of McMurdo P and Douglas J; separate reasons of Fryberg J, concurring as to the orders made

ORDER:

1. APPEAL AGAINST CONVICTION DISMISSED

2. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NONDIRECTION - GENERAL PRINCIPLES - where appellant was convicted of five counts of unlawfully and indecently dealing with a child - where the counts were based on complaints by two complainant children - whether appellant's legal representatives conducted his trial in such a way that a miscarriage of justice has occurred - whether appellant's legal representatives should have applied for a separate trial in relation to the complaints - whether trial judge erred in directing jury as to the use that could be made of one child's evidence in relation to charges relating to conduct against the other - whether trial judge erred in directing jury in relation to motives that complainant children may have had to make false allegations

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant was sentenced to two years imprisonment - where applicant did not press his application for leave to appeal against sentence if his appeal against conviction were to fail - whether his application for leave to appeal against sentence should be allowed

Mraz v The Queen (1955) 93 CLR 493, cited
Nudd v The Queen (2006) 225 ALR 161, considered

Palmer v The Queen (1998) 193 CLR 1, applied

Pfennig v The Queen (1995) 182 CLR 461, applied

Phillips v The Queen (2006) 224 ALR 216, applied
R v E (1996) 39 NSWLR 450, distinguished

R v G [1994] 1 Qd R 540, distinguished

R v O’Keefe [2000] 1 Qd R 564, cited

R v SAP; Ex parte A-G (Qld) [2005] QCA 284; CA No 51 of 2005, 12 August 2005, applied

COUNSEL:

G P Long for appellant/applicant
T A Fuller for respondent

SOLICITORS:

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

McMURDO P and DOUGLAS J: The appellant was convicted on 28 October 2005 of five counts of unlawfully and indecently dealing with a child. The first three counts related to a girl aged under 12 years while the fourth and fifth counts related to her older sister, a child…

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 Kay

Details

AGLC: R v Kay [2006] QCA 302
Case: [2006] QCA 302
Decision Date: 22 August 2006

CaseChat Overview and Summary

The appellant appealed against his conviction on five counts of unlawfully and indecently dealing with a child. The convictions were based on the complaints of two child complainants. The appellant argued that his legal representatives conducted his trial in a manner that caused a miscarriage of justice. He also claimed that his legal representatives should have applied for a separate trial in relation to the complaints. Additionally, the appellant argued that the trial judge misdirected the jury regarding the use of one child's evidence in relation to charges involving the other child, and in relation to the motives that the child complainants may have had to make false allegations. The appellant also sought leave to appeal against his sentence of two years imprisonment, although he did not press his application if his appeal against conviction were to fail.

The legal issues before the court included whether the appellant's legal representatives' conduct amounted to a miscarriage of justice, whether a separate trial should have been sought, and whether the trial judge's directions to the jury were erroneous. Furthermore, the court had to consider the appellant's application for leave to appeal against his sentence.

The court dismissed the appeal against conviction, finding no miscarriage of justice occurred due to the appellant's legal representatives' conduct. It was held that the trial judge's directions to the jury were appropriate, and there was no basis to order a separate trial. Additionally, the court refused the appellant's application for leave to appeal against his sentence, as he did not press the application if his appeal against conviction failed. The court found no basis to allow the appeal against sentence.

In summary, the court dismissed the appeal against conviction and refused the application for leave to appeal against the sentence.

Orders

Orders of the court

1. APPEAL AGAINST CONVICTION DISMISSED

2. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kay [2006] QCA 302
PARTIES:	R v KAY, Brian James (appellant/applicant)
FILE NO/S:	CA No 316 of 2005 DC No 248 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	22 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2006
JUDGES:	McMurdo P, Fryberg and Douglas JJ Joint reasons for judgment of McMurdo P and Douglas J; separate reasons of Fryberg J, concurring as to the orders made
ORDER:	1. APPEAL AGAINST CONVICTION DISMISSED 2. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NONDIRECTION - GENERAL PRINCIPLES - where appellant was convicted of five counts of unlawfully and indecently dealing with a child - where the counts were based on complaints by two complainant children - whether appellant's legal representatives conducted his trial in such a way that a miscarriage of justice has occurred - whether appellant's legal representatives should have applied for a separate trial in relation to the complaints - whether trial judge erred in directing jury as to the use that could be made of one child's evidence in relation to charges relating to conduct against the other - whether trial judge erred in directing jury in relation to motives that complainant children may have had to make false allegations CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where applicant was sentenced to two years imprisonment - where applicant did not press his application for leave to appeal against sentence if his appeal against conviction were to fail - whether his application for leave to appeal against sentence should be allowed Mraz v The Queen (1955) 93 CLR 493, cited Nudd v The Queen (2006) 225 ALR 161, considered Palmer v The Queen (1998) 193 CLR 1, applied Pfennig v The Queen (1995) 182 CLR 461, applied Phillips v The Queen (2006) 224 ALR 216, applied R v E (1996) 39 NSWLR 450, distinguished R v G [1994] 1 Qd R 540, distinguished R v O’Keefe [2000] 1 Qd R 564, cited R v SAP; Ex parte A-G (Qld) [2005] QCA 284; CA No 51 of 2005, 12 August 2005, applied
COUNSEL:	G P Long for appellant/applicant T A Fuller for respondent
SOLICITORS:	Legal Aid Queensland for appellant/applicant Director of Public Prosecutions (Queensland) for respondent