R v Magill - [2004] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Magill [2004] QCA 33

PARTIES:

R
v
MAGILL, Rodney William
(appellant)

FILE NO/S:

CA No 345 of 2003
DC No 231 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

20 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2004

JUDGES:

McMurdo P and McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

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 four counts of indecent treatment of child under 12 years whilst under his care – where complainant 8 ½ years old at time of offences – where inconsistencies in complainant’s evidence – where complainant had greater knowledge about sexual matters than might be expected of child of same age – whether verdict of guilty open to jury

COUNSEL:

A J Rafter SC for the appellant
M J Copley for the respondent

SOLICITORS:

Don McMillan for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant was convicted after a jury trial of four counts of indecent treatment of a child under 12 years whilst under his care. He contends that the verdicts are unreasonable and cannot be supported having regard to the evidence.

A consideration of this ground of appeal necessarily involves a review of the evidence, including those matters emphasised by the appellant.

The complainant was eight and a half years old when the four offences occurred on unknown dates between 8 and 14 September 2002. She and her younger brother attended the appellant's home where the appellant's wife provided family day care. The appellant's wife had cared for the children since November 2000, the brother on a fulltime basis and the complainant before school and during school holidays. Initially, the complainant's mother would drop the children off at between 5.30 to 5.40am and the appellant's wife would take them to school at about 8am. The complainant's mother regularly saw the appellant at these times. On 16 September 2002 she commenced a new position which allowed her to drop off the children at about 7am. From that time, she saw the appellant on only one or two occasions as he had usually left for work. On 1 November 2002 the complainant had a friend, A, to stay the night. That night A spoke to the complainant's mother and the next morning the complainant told her mother the appellant had touched her on the bum. This differed from the complainant's account to police later that day.

The prosecution case turned on the complainant's evidence which had no independent support. She was interviewed by police on 2 November 2002 and the 45 minute video taped interview was admitted under s 93A Evidence Act 1977 (Qld). The complainant gave responsive answers…

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 Magill

Details

AGLC: R v Magill [2004] QCA 33
Case: [2004] QCA 33
Decision Date: 20 February 2004

CaseChat Overview and Summary

In the case of R v Magill, the appellant, Mr. Magill, appealed against his conviction on four counts of indecent treatment of a child under the age of 12 while she was in his care. The complainant in the case was 8 ½ years old at the time of the alleged offences. The case was heard in the court of appeal, which was tasked with determining whether the verdict of guilty reached by the jury was unreasonable or insupportable. The court examined the evidence presented during the trial, with a particular focus on the inconsistencies in the complainant's testimony and her apparent knowledge of sexual matters beyond what might be expected of a child of her age.

The primary legal issue before the court was whether the jury's verdict of guilty was open to them, given the inconsistencies and peculiarities in the complainant's evidence. The court considered whether these factors were significant enough to render the verdict unreasonable or insupportable. It was necessary to assess whether the jury could have reasonably concluded that the appellant was guilty beyond a reasonable doubt based on the evidence presented. The court also had to determine whether the inconsistencies in the complainant's evidence were such that they undermined the overall reliability of her testimony.

The court of appeal carefully examined the evidence and found that despite the inconsistencies and the complainant's advanced knowledge of sexual matters, the jury was entitled to assess the credibility of the complainant and to convict the appellant if they were satisfied beyond a reasonable doubt of his guilt. The court concluded that the inconsistencies did not necessarily undermine the complainant's overall credibility and that the jury was entitled to find the appellant guilty based on the evidence presented. Consequently, the court dismissed the appeal against the conviction.

As a result of the court's decision, the appeal against the conviction was dismissed, and the original verdicts of guilty were upheld. Mr. Magill's appeal did not succeed, and he remains convicted on all four counts of indecent treatment of a child under 12 years of age while in his care.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Magill [2004] QCA 33
PARTIES:	R v MAGILL, Rodney William (appellant)
FILE NO/S:	CA No 345 of 2003 DC No 231 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2004
JUDGES:	McMurdo P and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
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 four counts of indecent treatment of child under 12 years whilst under his care – where complainant 8 ½ years old at time of offences – where inconsistencies in complainant’s evidence – where complainant had greater knowledge about sexual matters than might be expected of child of same age – whether verdict of guilty open to jury
COUNSEL:	A J Rafter SC for the appellant M J Copley for the respondent
SOLICITORS:	Don McMillan for the appellant Director of Public Prosecutions (Queensland) for the respondent