R v LQ

Case [2005] QCA 356 23 September 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v LQ [2005] QCA 356

PARTIES:

R
v
LQ
(appellant/applicant)

FILE NO/S:

CA No 139 of 2005
DC No 181 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2005

JUDGES:

McMurdo P, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, McMurdo P and Keane JA concurring as to the orders made, Jerrard JA dissenting in part

ORDER:

1. Appeal against conviction on all counts 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 – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – appellant convicted after a trial of three counts of indecent dealing with his 14 year old biological daughter – defence counsel objected to the prosecution’s decision not to call as a witness a friend of the complainant to whom she had made relevant statements regarding the appellant’s conduct – appellant contended that absence of this witness denied the appellant a possible advantage in proving the complainant had made a prior inconsistent statement regarding matters in issue at trial – complainant’s statement to potential witness was not necessarily inconsistent with her evidence generally – whether the prosecution’s failure to call complainant’s friend as a witness resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – complainant gave consistent accounts of the conduct constituting the three counts of indecent dealing in both a police interview and the first cross-examination admitted as pre-recorded evidence – complainant was subsequently cross-examined a second time by new defence barrister – defence counsel used second cross-examination to put the appellant’s case to the complainant – complainant agreed with some parts of appellant’s case but denied other parts – defence counsel did not put to complainant directly the appellant’s case regarding count 3 in the second cross-examination – this had been previously put to and denied by the complainant during the first cross-examination – re-examination of complainant after second cross-examination seemingly resulted in an inconsistency in complainant’s evidence regarding count 3 – whether on the whole of the evidence it was open to the jury to find the appellant guilty of all three counts

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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – appellant sentenced to a head sentence of two years and six months imprisonment with two concurrent terms of 12 months imprisonment – appellant’s conduct involved breach of parental trust – no mitigation…

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 LQ

Details

AGLC: R v LQ [2005] QCA 356
Case: [2005] QCA 356
Decision Date: 23 September 2005

CaseChat Overview and Summary

The appellant was convicted of three counts of indecent dealing with his 14-year-old biological daughter. The prosecution chose not to call a friend of the complainant, to whom she had made statements regarding the appellant’s conduct, as a witness. The appellant contended that this omission deprived him of a potential advantage in proving the complainant had made a prior inconsistent statement. The court was tasked with determining whether the absence of this witness resulted in a miscarriage of justice and whether the jury could reasonably convict the appellant based on the evidence presented.

The court examined the evidence provided by the complainant, which was consistent in both the police interview and the first cross-examination, which was admitted as pre-recorded evidence. The defence counsel used a second cross-examination to put the appellant’s case to the complainant, who agreed with some parts but denied others. However, the defence counsel did not directly address the appellant’s case regarding count 3 in the second cross-examination, despite it being previously put to and denied by the complainant during the first cross-examination. The re-examination of the complainant after the second cross-examination seemed to introduce an inconsistency in her evidence regarding count 3. The court had to decide whether the jury could reasonably find the appellant guilty of all three counts based on the whole evidence.

The court found that the absence of the friend as a witness did not result in a miscarriage of justice, as the complainant's statement to her friend was not necessarily inconsistent with her evidence generally. The court also concluded that the jury was open to finding the appellant guilty of all three counts based on the evidence presented. The court dismissed the appeal against conviction on all counts. Furthermore, the court refused the application for leave to appeal against the sentence, which was a head sentence of two years and six months imprisonment with two concurrent terms of 12 months imprisonment. The court found the sentence was not manifestly excessive, considering the breach of parental trust and the absence of mitigation by way of a guilty plea or demonstrated remorse.

Orders

Orders of the court

1. Appeal against conviction on all counts 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.

Citations

AGLC Citation

R v LQ [2005] QCA 356

Most Recent Citation

R v IB [2008] QCA 356

Cases citing this decision · 1 of 1 shown

R v IB
[2008] QCA 356 Para 1

…involved a serious violation of trust. He had regard to three sentences in comparable cases: R v NH [2006] QCA 476; R v MAI [2005] QCA 36; and R v LQ [2005] QCA 356.…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

R v MAL
[2005] QCA 238 Para 1

…tent with the guilt of the accused, which the jury was entitled to accept, for each inconsistency to which the evidence gave rise.[10] [10]Cf R v MAL [2005] QCA 238; CA No 36 of 2005, 28 June 2005 at [39].…
R v Cherry
[2004] QCA 328 Para 1

…iewed in the context of the trial, it gives rise to a miscarriage of justice.[4] [4]See Apostilides v The Queen (1984) 154 CLR 563 at 575; R v Cherry [2004] QCA 328; CA No 380 of 2002, 10 September 2004 at [112].…
MFA v The Queen
[2002] HCA 53 Para 1

…o be satisfied beyond reasonable doubt that the applicant indecently dealt with the complainant as particularised in count 3: MFA v The Queen .[1] [1](2002) 213 CLR 606, [25].…
M v the Queen
[1994] HCA 63 Para 1

…room, or as she said in the bedroom, it was an intrusive, offensive, and a particularly stupid act; but in my opinion, applying the test from M v R (1994) 181 CLR 487 at 493, on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable that that touching in the bedroom – count 3 – as des…
Knight v The Queen
[1992] HCA 56

…the accused was guilty (See Whitehorn v The Queen (1983) 152 CLR at p 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at p 532; Knight v The Queen (1992) 175 CLR 495 at pp 504 - 505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body ent…
Chidiac v The Queen
[1991] HCA 4

…bound to act and to set aside a verdict based upon that evidence ( Chamberlain v The Queen [No 2] (1984) 153 CLR at pp 618 - 619; Chidiac v The Queen (1991) 171 CLR 432 at pp 443 - 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be w…
Morris v the Queen
[1987] HCA 50

…with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence ( Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the cir…
R v Apostilides
[1984] HCA 38 Para 1

…setting a conviction aside if, when viewed in the context of the trial, it gives rise to a miscarriage of justice.[4] [4]See Apostilides v The Queen (1984) 154 CLR 563 at 575; R v Cherry [2004] QCA 328; CA No 380 of 2002, 10 September 2004 at [112].…
Whitehorn v the Queen
[1983] HCA 42

…hether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v The Queen (1983) 152 CLR at p 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at p 532; Knight v The Queen (1992) 175 CLR 495 at pp 504 - 505, 511). But in answeri…
Ratten v The Queen
[1974] HCA 35

…factory. Other terms may be used such as 'unjust or unsafe' (See Davies and Cody v The King (1937) 57 CLR 170 at p 180) or 'dangerous or unsafe' (See Ratten v The Queen (1974) 131 CLR at p 515). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (…
Hayes v The Queen
[1967] HCA 29

…h a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (See Hayes v The Queen (1973) 47 ALJR 603 at p 604). But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapab…
Plomp v The Queen
[1963] HCA 44

…er as a question of law whether there is evidence to support the verdict (See Raspor v The Queen (1958) 99 CLR 346 at pp 350 - 351; Plomp v The Queen (1963) 110 CLR 234 at pp 246, 250). Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own inde…
Raspor v The Queen
[1958] HCA 30

…reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (See Raspor v The Queen (1958) 99 CLR 346 at pp 350 - 351; Plomp v The Queen (1963) 110 CLR 234 at pp 246, 250). Questions of law are separately dealt with by s 6(1). The question is one of f…
Hargan v The King
[1919] HCA 45

…nstitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King , Isaacs J said ((1919) 27 CLR 13 at p 23): 'If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sig…
Davies v R
[1937] HCA 27

…onclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe' (See Davies and Cody v The King (1937) 57 CLR 170 at p 180) or 'dangerous or unsafe' (See Ratten v The Queen (1974) 131 CLR at p 515). In reaching such a conclusion, the court does not consider as a…

Legislation cited in this decision · 3

Criminal Law (Sexual Offences) Act 1978 (Qld)
1 mention (from Para 1)
Evidence Act 1977 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v LQ [2005] QCA 356
PARTIES:	R v LQ (appellant/applicant)
FILE NO/S:	CA No 139 of 2005 DC No 181 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2005
JUDGES:	McMurdo P, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, McMurdo P and Keane JA concurring as to the orders made, Jerrard JA dissenting in part
ORDER:	1. Appeal against conviction on all counts 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 – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR MATTERS – appellant convicted after a trial of three counts of indecent dealing with his 14 year old biological daughter – defence counsel objected to the prosecution’s decision not to call as a witness a friend of the complainant to whom she had made relevant statements regarding the appellant’s conduct – appellant contended that absence of this witness denied the appellant a possible advantage in proving the complainant had made a prior inconsistent statement regarding matters in issue at trial – complainant’s statement to potential witness was not necessarily inconsistent with her evidence generally – whether the prosecution’s failure to call complainant’s friend as a witness resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – complainant gave consistent accounts of the conduct constituting the three counts of indecent dealing in both a police interview and the first cross-examination admitted as pre-recorded evidence – complainant was subsequently cross-examined a second time by new defence barrister – defence counsel used second cross-examination to put the appellant’s case to the complainant – complainant agreed with some parts of appellant’s case but denied other parts – defence counsel did not put to complainant directly the appellant’s case regarding count 3 in the second cross-examination – this had been previously put to and denied by the complainant during the first cross-examination – re-examination of complainant after second cross-examination seemingly resulted in an inconsistency in complainant’s evidence regarding count 3 – whether on the whole of the evidence it was open to the jury to find the appellant guilty of all three counts 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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – appellant sentenced to a head sentence of two years and six months imprisonment with two concurrent terms of 12 months imprisonment – appellant’s conduct involved breach of parental trust – no mitigation…