R v Main - [1993] QCA 408

IN THE COURT OF APPEAL [1993] QCA 408
SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1993

Brisbane
[R. v. Main]
BETWEEN

T H E Q U E E N
v.
NEIL MAIN
(Appellant)

The President
Mr Justice McPherson
Mr Justice Thomas

Judgment delivered 27/10/93
Separate reasons for judgment by each member of the Court. Fitzgerald P. dissenting as to conviction on count 2. Thomas J. dissenting as to sentence.

APPEAL AGAINST CONVICTIONS DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE ON COUNT 1 REDUCED TO IMPRISONMENT FOR FIVE YEARS. SENTENCE ON COUNT 2 NOT AFFECTED.

CATCHWORDS CRIMINAL LAW - CONVICTION - Sodomy - Indecent dealing - Sections 208, 210 Criminal Code (Qld.) - Whether complainants' testimony unreliable - Whether verdict unsafe and unsatisfactory.

CRIMINAL LAW - SENTENCE - Circumstances of aggravation - Whether manifestly excessive.

Counsel: P.J. Alcorn for the appellant
P. Callaghan for the Crown

Solicitors:Legal Aid Office for the appellant
Director of Prosecutions for the Crown

Hearing Date: 12 October 1993.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 148 of 1993

Before       The President
             Mr Justice McPherson
             Mr Justice Thomas
[R. v. Main]
BETWEEN:

T H E Q U E E N
v.
NEIL MAIN
(Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 27/10/93
The circumstances giving rise to this appeal are set out in the judgment of McPherson JA.
     I agree with his Honour that the appeal against the appellant's conviction for sodomy must fail, but I would allow the appeal in respect of his conviction on the second count for indecent dealing.
     Whatever the explanation for the complainant's uncertainty as to what occurred, whether sleeplessness or some other cause, it was essential to the case against the appellant that the complainant's evidence was sufficiently reliable to sustain a conclusion, beyond reasonable doubt, that the incident which he described in fact took place and, for example, did not occur only in a dream. In my opinion, a reasonable jury, acting reasonably, could not have been so satisfied.
     I agree with McPherson JA. that the application for leave to appeal against sentence should be granted, the appeal allowed, the sentence on count 1 reduced to imprisonment for 5 years, and the sentence on count 2 not disturbed.
IN THE SUPREME COURT
OF QUEENSLAND

C.A. No. 148 of 1993

Brisbane
Before    The President
         Mr Justice McPherson
         Mr Justice Thomas
[R. v. Main]
BETWEEN

T H E Q U E E N
v.
NEIL MAIN
(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Delivered the Twenty-Seventh day of October 1993
This is an appeal by Neil Main against his conviction at his trial in the District Court at Emerald on an indictment charging him with an act of carnal knowledge by anal intercourse of a child under the age of 16 years (count 1), and also with indecent dealing with another child under the age of 12 years (count 2). The complainants are boys who are related as brothers, or it…

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 Main

Details

AGLC: R v Main [1993] QCA 408
Case: [1993] QCA 408
Decision Date: 19 July 1993

CaseChat Overview and Summary

The Court of Appeal heard an appeal by Neil Main against his conviction on two counts: one of sodomy of a child under 16 years old and another of indecent dealing with a child under 12 years old. The appellant was found guilty following a trial in the District Court at Emerald and sentenced to a total of 7 years imprisonment. The appeal against the conviction on the first count was dismissed, while the appeal on the second count was allowed. The appeal against the sentence was allowed in part, reducing the sentence on count 1 to 5 years imprisonment.

The central legal issue in this case was whether the testimony of the complainants was reliable enough to sustain the verdict beyond reasonable doubt, particularly in light of the uncertainty expressed by one of the complainants regarding the events in question. The Court had to consider whether the jury could have reasonably accepted the complainants' testimony as credible and reliable, given the circumstances of the case. Additionally, the Court was required to determine whether the sentence imposed on the appellant was manifestly excessive given the circumstances of the offence.

The Court found that the evidence presented was sufficient for a reasonable jury to conclude that the incidents described by the complainants had occurred. Despite some inconsistencies and uncertainties in the complainants' testimony, the Court concluded that the jury was justified in finding their evidence credible, particularly in light of corroborative evidence from other witnesses. Regarding the sentence, the Court found that while the offences were serious, the sentence imposed was too severe given the circumstances of the case. The Court reduced the sentence on count 1 to 5 years imprisonment, while the sentence on count 2 remained unaffected.

The final orders of the Court were that the appeal against the conviction on count 1 was dismissed, the appeal on count 2 was allowed, and the sentence on count 1 was reduced to imprisonment for 5 years. The sentence on count 2 remained at 3 years imprisonment, running concurrently with the reduced sentence on count 1.

Orders