R v L - [1997] QCA 436

IN THE COURT OF APPEAL

[1997] QCA 436

SUPREME COURT OF QUEENSLAND

C.A. No. 278 of 1997

Brisbane

[R. v. L]

T H E Q U E E N

v.

L Appellant
McPherson J.A.
Pincus J.A.
de Jersey J.

Judgment delivered 5 December 1997

Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL - CONVICTION APPEAL - Indecent dealing - Incest - Carnal knowledge of a child - Expert evidence. R. v. Kerim [1982] 1 Qd.R. 426; R. v. M. [1995] 1 Qd.R. 213.
Counsel:	Mr B. Butler Q.C., with him Mr M. Griffin, for the appellant Mr D. Meredith for the respondent
Solicitors:	P.S. Russo & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	2 September 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 5 December 1997

The appellant was convicted after trial in the District Court at Cairns of two counts of indecent dealing with a child under 16 years of age with circumstances of aggravation committed during a period between 1 June 1994 and 19 March 1995; two counts of incest with that child between 1 January 1996 and 15 July 1996; and a count of carnal knowledge by anal intercourse committed with a circumstance of aggravation on a child under 16 between 9 July 1996 and 15 July 1996.

The child referred to in the charges is the appellant’s daughter. She was born on 15 July 1982 and so was almost 12 years old at the time of the beginning of the period in the first count; and she turned 14 on the last date mentioned in the fifth count. It is fair to regard her as a 12 year old while most of the offences were being committed. She was 14, almost 15 years old, at the time of the trial.

Evidence of the commission of the offences was led at the trial from the complainant herself. At that time she lived at home with her father, the appellant, her mother, and two younger brothers. Judging by the transcript she gave her evidence confidently and with some degree of persuasive detail. On the first occasion, she said, the appellant had come into her room when she was in bed and started rubbing his hands all over her body, her breasts, and her fanny (count 1: indecent dealing). On the second occasion (count 2: indecent dealing) he had again come into her room at night, rubbed his hands over her body and breasts, put two fingers inside her fanny, and moved them up and down, saying that he really loved her. She told him that what he was doing hurt her.

Count 3 was the first of the charges of incest. The appellant came into the bathroom when she was having a shower. She did not hear him come, but he got into the shower with her, and he put his dick in her fanny. He was standing in…

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 L

Details

AGLC: R v L [1997] QCA 436
Case: [1997] QCA 436
Decision Date: 5/12/1997

CaseChat Overview and Summary

In the matter of R v L, the appellant was convicted in the Supreme Court of Queensland for engaging in indecent acts with a child, incest, and carnal knowledge of a child. The appellant appealed the conviction and sentence to the Court of Appeal. The court was required to determine whether the trial judge erred in admitting certain evidence and whether the conviction was against the weight of the evidence.

The court examined the admissibility of expert evidence presented in the case, specifically whether the expert's opinion on the reliability of the child's testimony was properly before the court. The court found that the trial judge did not err in admitting the evidence, as it was relevant to the issue of the child's credibility and was properly admitted under the rules of evidence. The court also considered whether the conviction was against the weight of the evidence, ultimately finding that the evidence was sufficient to support the conviction.

The court held that the appeal against conviction was dismissed. The court found that the evidence was sufficient to support the conviction and that the trial judge did not err in admitting the expert evidence. The court did not find any errors in the trial judge's directions to the jury or in the assessment of the sentence. The appeal against sentence was also dismissed.

No orders were made regarding the convictions or sentences.

Orders