R v May - [2007] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:

R v MAY [2007] QCA 333

PARTIES:

R
v
MAY
(applicant/appellant)

FILE NO/S:

CA No 111 of 2007
DC No 192 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2007

JUDGES:

Holmes JA, Wilson and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Separate re-trials ordered of the remaining counts on which the appellant was convicted: the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EFFECT OF EMBARRASSMENT OR PREJUDICE – where the appellant was tried on one count of maintaining a sexual relationship with a child, 14 counts of indecent treatment of a child under 12 who was a lineal descendant, and seven counts of possession of a child abuse computer game – where the appellant was convicted on five of the counts of indecent treatment and the seven counts of possessing a child abuse computer game – where the appellant contended that it was prejudicial to allow the counts to remain joined – whether counts 1‑5 on the indictment, the maintaining and indecent treatment charges, should have been severed from counts 16-22, the counts of possession of a child abuse computer game

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the appellant also contended that the verdict was unreasonable because of discrepancies between evidence of internet chat usage and his telephone and work records – whether the verdict was unreasonable in the circumstances

Classification of Computer Games and Images Act 1995 (Qld), s 62(4)
Criminal Code Act 1899 (Qld), s 210, s 567, s 590AA, s 597A(1)

De Jesus v The Queen (1986) 61 ALJR 1, considered
Hoch v The Queen (1988) 165 CLR 292, applied
Phillips v The Queen (2006) 225 CLR 303, considered
R v B [1989] 2 Qd R 343, cited
R v Collins [1996] 1 Qd R 631, considered
R v Cranston [1988] 1 Qd R 159, applied

COUNSEL:

The appellant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant was tried on one count of maintaining a sexual relationship with a child (Count 1), 14 counts of indecent treatment of a child under 12 who was a lineal descendant (Counts 2-15), and seven counts of possession of a child abuse computer game (Counts 16-22). The maintaining count was the subject of a nolle prosequi entered by the Crown at the end of the defence case. Five…

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 May

Details

AGLC: R v May [2007] QCA 333
Case: [2007] QCA 333
Decision Date: 12 October 2007

CaseChat Overview and Summary

The appellant was charged and convicted in the Supreme Court of New South Wales on various counts relating to child sexual abuse and possession of child abuse material. The appellant was convicted on five counts of indecent treatment of a child under 12 and seven counts of possession of a child abuse computer game. The appellant appealed against the conviction, arguing that the trial judge erred in not severing the counts on the indictment that related to maintaining a sexual relationship with a child and indecent treatment of a child from the counts that related to possession of child abuse computer games. The appellant further contended that the verdict was unreasonable due to discrepancies between the evidence of internet chat usage and the appellant's telephone and work records.

The court considered whether the trial judge erred in not severing the counts on the indictment. The court noted that the appellant was charged with maintaining a sexual relationship with a child, indecent treatment of a child under 12, and possession of child abuse computer games. The court held that the trial judge should have severed the maintaining and indecent treatment charges from the possession of child abuse computer games charges as they were separate and distinct offences that could have caused embarrassment or prejudice to the appellant. The court further considered whether the verdict was unreasonable and found that there were discrepancies in the evidence that undermined the reliability of the evidence, and as such, the verdict was unreasonable.

The court allowed the appeal and ordered separate re-trials of the remaining counts on which the appellant was convicted. The court ordered that the indecent treatment counts, 2, 4, 6, 8, and 15 be tried in one trial and counts 16-22 be tried in another. The court held that the appellant was entitled to a fair trial and that the errors made in the original trial could not be rectified by any other means.

Orders

Orders of the court

1. Appeal allowed

2. Separate re-trials ordered of the remaining counts on which the appellant was convicted: the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another

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 MAY [2007] QCA 333
PARTIES:	R v MAY (applicant/appellant)
FILE NO/S:	CA No 111 of 2007 DC No 192 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2007
JUDGES:	Holmes JA, Wilson and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Separate re-trials ordered of the remaining counts on which the appellant was convicted: the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – EFFECT OF EMBARRASSMENT OR PREJUDICE – where the appellant was tried on one count of maintaining a sexual relationship with a child, 14 counts of indecent treatment of a child under 12 who was a lineal descendant, and seven counts of possession of a child abuse computer game – where the appellant was convicted on five of the counts of indecent treatment and the seven counts of possessing a child abuse computer game – where the appellant contended that it was prejudicial to allow the counts to remain joined – whether counts 1‑5 on the indictment, the maintaining and indecent treatment charges, should have been severed from counts 16-22, the counts of possession of a child abuse computer game CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the appellant also contended that the verdict was unreasonable because of discrepancies between evidence of internet chat usage and his telephone and work records – whether the verdict was unreasonable in the circumstances Classification of Computer Games and Images Act 1995 (Qld), s 62(4) Criminal Code Act 1899 (Qld), s 210, s 567, s 590AA, s 597A(1) De Jesus v The Queen (1986) 61 ALJR 1, considered Hoch v The Queen (1988) 165 CLR 292, applied Phillips v The Queen (2006) 225 CLR 303, considered R v B [1989] 2 Qd R 343, cited R v Collins [1996] 1 Qd R 631, considered R v Cranston [1988] 1 Qd R 159, applied
COUNSEL:	The appellant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent