R v Lanagan - [2005] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lanagan [2005] QCA 209

PARTIES:

R
v
LANAGAN, Clayton John
(appellant)

FILE NO/S:

CA No 18 of 2005
DC No 125 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2005

JUDGES:

de Jersey CJ, White and McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed, the conviction quashed and a retrial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of indecent dealing and rape of a child under the age of 16 – where prosecution case depended entirely upon the evidence of the complainant – where evidence of the complainant inconsistent in some respects with that of two other witnesses – whether verdicts were reasonably open to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – where trial judge directed the jury in relation to a minor’s ability to give consent firstly to an act of indecent dealing and then to rape – where jury requested redirections on a minor’s capacity to consent to rape – whether jury confused in relation to the issue of consent

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where complainant was 16 at the time of the offence – where complainant gave a statement to the police two days after the offence was committed – where complainant gave oral evidence at a preliminary hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) after she had turned 16 – where the statement was tendered at the subsequent hearing – whether the statement was admissible under s 93A of the Evidence Act

Criminal Code 1899 (Qld), s 597C, 668E(1A)
Evidence Act 1977 (Qld), s 21AJ, s 21 AK, s 93A,
s 93A(1)(b), s 93A(3), s 93A(5)

R v GR [2005] QCA 146; CA No 319 of 2004, 10 May 2005, applied

COUNSEL:

B G Devereux for the appellant
C W Heaton for the respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of McMurdo J. I agree with the orders proposed by His Honour, and with his reasons.

WHITE J: I have read the reasons for decision of McMurdo J and agree with his Honour for the reasons that he gives that the appeal must be allowed because…

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 Lanagan

Details

AGLC: R v Lanagan [2005] QCA 209
Case: [2005] QCA 209
Decision Date: 17 June 2005

CaseChat Overview and Summary

The appellant was convicted of indecent dealing and rape of a child under the age of 16, with the prosecution's case resting solely on the testimony of the complainant. The court was presented with issues regarding the consistency of the complainant's evidence and whether the jury's verdict was reasonable given these inconsistencies. The complainant's evidence was at odds with that of two other witnesses, raising questions about the reliability and credibility of the complainant's account. The court also had to consider whether the jury's understanding of the issue of consent, particularly in relation to a minor's capacity to consent to acts of indecent dealing and rape, was adequately addressed by the trial judge. The court found that the trial judge's directions on consent were potentially confusing and that the jury's comprehension of this issue could have influenced their verdicts. Additionally, the court had to examine whether a statement made by the complainant to the police, which was tendered at the trial, was admissible under the relevant provisions of the Evidence Act.

The court determined that the discrepancies in the complainant's evidence, coupled with the confusion regarding the issue of consent, rendered the jury's verdicts unreasonable. The court held that the trial judge's directions on consent were insufficient and may have led to the jury's misunderstanding of this critical aspect of the case. Furthermore, the court concluded that the complainant's statement to the police was inadmissible under the provisions of the Evidence Act, as it was given when the complainant was a minor and was tendered after she had turned 16. These factors collectively contributed to a miscarriage of justice, leading the court to allow the appeal, quash the conviction, and order a retrial.

Orders

Orders of the court

The appeal is allowed, the conviction quashed and a retrial ordered

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 Lanagan [2005] QCA 209
PARTIES:	R v LANAGAN, Clayton John (appellant)
FILE NO/S:	CA No 18 of 2005 DC No 125 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	17 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2005
JUDGES:	de Jersey CJ, White and McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal is allowed, the conviction quashed and a retrial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of indecent dealing and rape of a child under the age of 16 – where prosecution case depended entirely upon the evidence of the complainant – where evidence of the complainant inconsistent in some respects with that of two other witnesses – whether verdicts were reasonably open to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR OFFENCES – where trial judge directed the jury in relation to a minor’s ability to give consent firstly to an act of indecent dealing and then to rape – where jury requested redirections on a minor’s capacity to consent to rape – whether jury confused in relation to the issue of consent CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where complainant was 16 at the time of the offence – where complainant gave a statement to the police two days after the offence was committed – where complainant gave oral evidence at a preliminary hearing pursuant to s 21AK of the Evidence Act 1977 (Qld) after she had turned 16 – where the statement was tendered at the subsequent hearing – whether the statement was admissible under s 93A of the Evidence Act Criminal Code 1899 (Qld), s 597C, 668E(1A) Evidence Act 1977 (Qld), s 21AJ, s 21 AK, s 93A, s 93A(1)(b), s 93A(3), s 93A(5) R v GR [2005] QCA 146; CA No 319 of 2004, 10 May 2005, applied
COUNSEL:	B G Devereux for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent