R v McCallum

Case [2013] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCallum [2013] QCA 254

PARTIES:

R
v
McCALLUM, Nicholas Glen
(appellant/applicant)

FILE NO/S:

CA No 83 of 2013
DC No 211 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

10 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2013

JUDGES:

Chief Justice and Gotterson JA 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 dismissed. 

2. Application for leave to appeal against sentence refused. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was a qualified masseur and fitness coach in a tennis centre where the complainant trained and was treated by the appellant – where the appellant was convicted of six counts of unlawfully and indecently dealing with a child under 16 years of age who was under his care at the time – where for each count, except one, the appellant was alleged to have touched the complainant’s vagina at least four times – where for the last occasion, the alleged touching was once, but more intrusively and for a longer period of about five minutes – where the complainant gave evidence that she had thought it was an accident prior to the last occasion – where the appellant contends that a s 23(1)(b) direction should have been given for all counts on which he was convicted as well as the other counts – where upon providing the jury with a document stating what the Crown must prove beyond reasonable doubt the trial judge expressed the view that having regard to the nature of the Crown case, a s 23(1)(b) direction was not necessary – where the appellant’s trial counsel was content with the document going to the jury without a s 23(1)(b) direction – whether the evidence in question called for such a direction – whether the learned trial judge failed to direct the jury adequately as to s 23 of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge repeated what was said in the document given to the jury with respect to the meaning of the word indecent – where the appellant contended that the direction was “unexceptional but basic” – where it was said that it failed to link specifically to the facts in question – where the appellant relied on the decision of this Court in R v Jones to justify the giving of a direction in regards to motive – where the touching of the vagina, if accepted as being deliberate, did not have any possible legitimate justification – whether the learned trial judge erred in not directing the jury that the appellant’s motive or intention…

Continue reading R v McCallum

Sign in free to access the full text

Details
AGLC
R v McCallum [2013] QCA 254
Case
[2013] QCA 254
Decision Date

CaseChat Overview and Summary

In this matter, the appellant, a qualified masseur and fitness coach, was convicted on six counts of unlawfully and indecently dealing with a child under 16 years of age who was under his care at a tennis centre. The child alleged that the appellant had touched her vagina multiple times during massage sessions. The appellant argued that the jury should have been directed to consider his motive, arguing that his actions, if deliberate, lacked any legitimate justification. The appellant also claimed that the verdicts were inconsistent and that the evidence did not support the guilty verdicts.

The primary legal issues addressed by the court were whether the trial judge should have directed the jury on section 23(1)(b) of the Criminal Code, and whether the evidence warranted such a direction. Additionally, the court considered whether the trial judge's direction on the meaning of 'indecent' was adequate and whether the jury's verdicts were inconsistent or unreasonable. The court also examined the sentence imposed to determine if it was manifestly excessive.

The court held that the trial judge's decision not to direct the jury on section 23(1)(b) was not in error as the nature of the Crown's case did not necessitate such a direction. The court found that the trial judge's explanation of the term 'indecent' was sufficient, and the jury's verdicts, though seemingly inconsistent, were open to them given the directions provided. The court also determined that the sentence imposed was within the appropriate range and was not manifestly excessive.

The final orders of the court were that the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1.Appeal against conviction 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.