R v Litzow - [2011] QCA 366

SUPREME COURT OF QUEENSLAND

CITATION:

R v Litzow [2011] QCA 366

PARTIES:

R
v
LITZOW, Steven James
(appellant)

FILE NO/S:

CA No 269 of 2011
DC No 101 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

13 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2011

JUDGES:

Fraser and Chesterman JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction allowed.
2. Conviction and verdict set aside.
3. Verdict of acquittal entered on count 2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was charged with four counts of indecent treatment of a child under 16 – where two counts alleged a circumstance of aggravation, one that the child was under 12 and another that the child was under his care at the time of the offence – where the appellant was found guilty of one count of indecent treatment of a child under 16 – where the appellant argued that the verdict was unreasonable because it was inconsistent with the verdicts of not guilty on the other three counts – whether the quality of evidence with respect to count 2 was better and therefore provided an explanation for the difference in verdicts – whether the verdicts are inconsistent and the conviction therefore unreasonable – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant argued that inadmissible, prejudicial evidence was admitted against him – where the evidence the subject of the complaint was given by the appellant’s daughter and the complainant’s mother – where the s 93A interview between the appellant’s daughter and police contained nothing that corroborated the complainant’s evidence of complaint – where the appellant’s daughter had simply observed a change in demeanour – where the prosecutor had the appellant’s daughter repeat her observation during the pre-recorded evidence pursuant to s 21AK of the Evidence Act 1977 (Qld) – where defence counsel had attempted to object to the evidence of the change in demeanour and personality – where the complainant’s mother gave evidence of preliminary complaint – where there were contradictions in her account – where the complainant’s mother was later asked to recall any other changes in the complainant – where the complainant’s mother indicated there were behavioural changes – whether the evidence of observed changes in the complainant’s behaviour had a logical connection with the commission of the offences – whether the evidence was admissible – whether the evidence was used improperly – whether its prejudicial effect outweighed its probative value – whether the admission of evidence resulted in a miscarriage of justice

Evidence Act 1977 (Qld), s 21AK, s 93A

Jones…

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 Litzow

Details

AGLC: R v Litzow [2011] QCA 366
Case: [2011] QCA 366
Decision Date: 13 December 2011

CaseChat Overview and Summary

The appellant, Litzow, was charged with four counts of indecent treatment of a child under 16, two of which included aggravating circumstances. After a trial, the jury found him guilty of one count and acquitted him of the other three. The appellant appealed, arguing that the verdict on count 2 was unreasonable and inconsistent with the acquittals on the other counts. Additionally, he contended that prejudicial evidence was improperly admitted, which contributed to a miscarriage of justice.

The court considered whether the quality of the evidence on count 2 was such that it justified a different outcome from the acquittals on the other counts. The court also examined the admissibility of the evidence concerning the complainant's behavioural changes, including the evidence given by the appellant's daughter and the complainant's mother. The court had to determine whether the evidence of observed changes in the complainant’s behaviour was logically connected to the commission of the offences and whether its prejudicial effect outweighed its probative value.

The court found that the evidence on count 2 was not of such a quality that it could reasonably support a guilty verdict while the other counts were acquitted. The inconsistencies in the evidence and the logical disconnect between the observed behavioural changes and the commission of the offences led the court to conclude that the verdict on count 2 was unreasonable. Furthermore, the court determined that the admission of prejudicial evidence resulted in a miscarriage of justice. Consequently, the appeal was allowed, the conviction and verdict were set aside, and a verdict of acquittal was entered on count 2.

The final orders of the court were to allow the appeal against the conviction, set aside the conviction and verdict, and enter a verdict of acquittal on count 2.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Conviction and verdict set aside.

3. Verdict of acquittal entered on count 2.

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 Litzow [2011] QCA 366
PARTIES:	R v LITZOW, Steven James (appellant)
FILE NO/S:	CA No 269 of 2011 DC No 101 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	13 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2011
JUDGES:	Fraser and Chesterman JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction allowed. 2. Conviction and verdict set aside. 3. Verdict of acquittal entered on count 2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was charged with four counts of indecent treatment of a child under 16 – where two counts alleged a circumstance of aggravation, one that the child was under 12 and another that the child was under his care at the time of the offence – where the appellant was found guilty of one count of indecent treatment of a child under 16 – where the appellant argued that the verdict was unreasonable because it was inconsistent with the verdicts of not guilty on the other three counts – whether the quality of evidence with respect to count 2 was better and therefore provided an explanation for the difference in verdicts – whether the verdicts are inconsistent and the conviction therefore unreasonable – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant argued that inadmissible, prejudicial evidence was admitted against him – where the evidence the subject of the complaint was given by the appellant’s daughter and the complainant’s mother – where the s 93A interview between the appellant’s daughter and police contained nothing that corroborated the complainant’s evidence of complaint – where the appellant’s daughter had simply observed a change in demeanour – where the prosecutor had the appellant’s daughter repeat her observation during the pre-recorded evidence pursuant to s 21AK of the Evidence Act 1977 (Qld) – where defence counsel had attempted to object to the evidence of the change in demeanour and personality – where the complainant’s mother gave evidence of preliminary complaint – where there were contradictions in her account – where the complainant’s mother was later asked to recall any other changes in the complainant – where the complainant’s mother indicated there were behavioural changes – whether the evidence of observed changes in the complainant’s behaviour had a logical connection with the commission of the offences – whether the evidence was admissible – whether the evidence was used improperly – whether its prejudicial effect outweighed its probative value – whether the admission of evidence resulted in a miscarriage of justice Evidence Act 1977 (Qld), s 21AK, s 93A Jones…