R v McCaskill - [2017] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCaskill [2017] QCA 172

PARTIES:

R
v
McCASKILL, Henry
(appellant)

FILE NO/S:

CA No 273 of 2016
DC No 336 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 9 September 2016

DELIVERED ON:

Orders delivered 11 August 2017
Reasons delivered 15 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2017

JUDGES:

Sofronoff P and McMurdo JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 11 August 2017:

1.   The appeal is allowed.

2.   The convictions are set aside.

3.   A re-trial on counts 3, 4 and 6 is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant was convicted by jury of two counts of indecent dealing and one count of indecent assault – where trial judge made direction to jury that observations by two witnesses of the complainant’s conduct after the alleged offence and the appellant’s admission that the complainant had confronted him after the alleged offence could ‘counter’ another direction that it might be dangerous to convict on the complainant’s uncorroborated testimony – whether direction gave rise to miscarriage of justice – whether supportive evidence to counter dangers identified by Robinson direction must originate from source ‘independent’ of the complainant – whether proviso applies

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
R v Baskerville [1916] 2 KB 658, cited
R v Kendrick [1997] 2 VR 699, cited
R v Sailor [1994] 2 Qd R 342; [1993] QCA 23, cited
R v Williams [2010] 1 Qd R 276; [2008] QCA 411, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

M J Copley QC for the appellant
G J Cummings for the respondent

SOLICITORS:

Rennick Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Douglas J and with the orders his Honour proposes.
McMURDO JA: I agree with Douglas J.
DOUGLAS J: The learned trial judge directed the jury that observations made by two witnesses of the complainant’s conduct and the appellant’s admission that the complainant had confronted him, were capable of constituting supportive evidence to “counter” another direction by his Honour to the jury that it might be dangerous to convict on the complainant’s testimony. The issue on this appeal is whether the first direction gave rise to a miscarriage of justice.
The ground of appeal related to that issue replaced two other abandoned grounds that the three verdicts of guilty entered by the jury were unreasonable and that they were also inconsistent with other verdicts of acquittal.
The offences of which the appellant was found guilty were two…

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 McCaskill

Details

AGLC: R v McCaskill [2017] QCA 172
Case: [2017] QCA 172
Decision Date: 15 August 2017

CaseChat Overview and Summary

In the case of R v McCaskill, the appellant contested his convictions on three counts related to indecent acts, two counts of indecent dealing and one count of indecent assault, which were upheld by the jury. The appellant argued that a miscarriage of justice had occurred due to a direction given by the trial judge to the jury. The direction implied that the jury could safely convict based on the complainant's uncorroborated testimony, counterbalancing the usual warning that such convictions are dangerous. The appellant's counsel contended that this direction misapplied the proviso of a specific legal principle, requiring any counterbalancing evidence to originate from an independent source unrelated to the complainant.

The central legal issue was whether the trial judge's direction to the jury constituted a miscarriage of justice and whether the proviso of the legal principle required counterbalancing evidence to be independent of the complainant. The court examined the nature and source of the evidence presented during the trial, particularly whether the observations of the complainant's conduct and the appellant's admission could independently support the complainant's version of events. The court needed to determine if these observations and admissions were sufficient to counter the usual cautionary direction about convicting on uncorroborated testimony.

The court concluded that the trial judge's direction had indeed misapplied the proviso by erroneously identifying evidence that did not independently support the complainant's version. The observations and admissions, which were not independent of the complainant, could not counterbalance the usual cautionary direction. Consequently, the court held that the appeal should be allowed, the convictions set aside, and a retrial ordered on the three counts in question. This decision underscores the importance of adhering strictly to the legal principles governing the evaluation of uncorroborated testimony in criminal cases.

The court ordered that the appeal be allowed, the convictions set aside, and a retrial ordered on counts 3, 4, and 6. This decision reflects the necessity for trial judges to carefully consider the implications of their directions to the jury, particularly when dealing with uncorroborated testimony, to ensure that the principles of justice are properly upheld.

Orders

Orders of the court

Delivered ex tempore on 11 August 2017:

1. The appeal is allowed.

2. The convictions are set aside.

3. A re-trial on counts 3, 4 and 6 is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The offences of which the appellant was found guilty were two of indecent dealing (Counts 3 and 4) and one of indecent assault (Count 6). He was acquitted on two further counts of indecent dealing and three of indecent assault. The offences were alleged to have occurred in 1987.The evidence Although there is now no ground of appeal that the verdicts of guilty were unreasonable the respondent argued that the case was one where it would be suitable to apply the proviso. It is useful, in any event, to provide a brief survey of the relevant evidence to set in context the issue related to the direction given by the learned trial judge. The complainant was, in 1987, a 15 to 16 year old talented student and basketball player. The appellant coached an under 18 regional representative team for which she played. The first two of the eight counts were charges of indecent dealing, of which the appellant was found not guilty. They were supported by the complainant’s evidence that the appellant, while travelling in a bus with her returning to her home city from a basketball tournament in another city, was seated next to her, required her to handle his exposed penis and then touched her genitals through her clothing. Counsel for the respondent argued that the jury’s not guilty verdict in respect of these counts was explicable by some inconsistencies in the evidence about it. The appellant denied that the events occurred and the cross-examination on his behalf also suggested that such an event was unlikely to have occurred given the number of other people on the bus at the time. Counts 3 and 4, were two of the counts of which the appellant was found guilty. Count 3 was particularised as an occasion in a weights room associated with the place where she trained when the appellant rubbed his penis against her. That was said to have occurred in May 1987 and the defence case was, again, that the incident did not occur. The appellant gave evidence to that effect as he did in respect of Count 4, another occasion said to have occurred in the appellant’s office when it was alleged he rubbed his penis against the complainant. That was at the basketball training premises also. It was also denied by the appellant. Count 5 was alleged to have occurred just after the complainant’s sixteenth birthday. The appellant offered her a lift home which she accepted. He took her down to the end of the street near a park, put her seat in the car down and then climbed on top of her. Both remained fully clothed. She told him to get off because it hurt and he eventually did so. Counsel for the respondent submitted that the not guilty verdict in relation to this count was entirely consistent with the complainant’s evidence failing to establish a lack of consent on her part or the absence of an honest and reasonable mistake on the part of the appellant. Count 6, the third count on which the appellant was found guilty, was particularised as an occasion at his apartment when he rubbed his penis against the complainant without her consent. That charge also related to events that occurred after her sixteenth birthday.

Decision

Reasons for decision

He also submitted that this was an appropriate case for the application of the proviso having regard to the whole of the evidence and the task that should have been clear to the jury of comparing the complainant’s evidence with that of the appellant.Conclusions and orders In my view the submissions for the appellant were correct. The consequence is that his Honour impermissibly undermined the appropriate warning that it was dangerous for the jury to convict in the absence of evidence supporting the complainant’s case by erroneously identifying evidence that was not capable of independently supporting her version of events. Nor is this a case to which the proviso could apply. The respondent’s submission that the criticised directions would not have made any difference because the jury should have been preoccupied with more important issues such as evaluating the complainant’s evidence and comparing it with that of the appellant is not persuasive in the circumstances. The jury was discriminating in how it approached the question of the appellant’s guilt in respect of the various counts and had the benefit of his evidence in evaluating the case. This court should not apply the proviso unless we are persuaded beyond reasonable doubt of the appellant’s guilt, something which we could not do fairly in a case like this one where we have not seen him give his evidence.[11][11]See Weiss v The Queen (2005) 224 CLR 300, 315-318 at [39]-[47] especially at [41]. The consequence is that the appeal should be allowed. The convictions should be set aside and a retrial on Counts 3, 4 and 6 should be ordered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McCaskill [2017] QCA 172
PARTIES:	R v McCASKILL, Henry (appellant)
FILE NO/S:	CA No 273 of 2016 DC No 336 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 9 September 2016
DELIVERED ON:	Orders delivered 11 August 2017 Reasons delivered 15 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2017
JUDGES:	Sofronoff P and McMurdo JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 11 August 2017: 1. The appeal is allowed. 2. The convictions are set aside. 3. A re-trial on counts 3, 4 and 6 is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant was convicted by jury of two counts of indecent dealing and one count of indecent assault – where trial judge made direction to jury that observations by two witnesses of the complainant’s conduct after the alleged offence and the appellant’s admission that the complainant had confronted him after the alleged offence could ‘counter’ another direction that it might be dangerous to convict on the complainant’s uncorroborated testimony – whether direction gave rise to miscarriage of justice – whether supportive evidence to counter dangers identified by Robinson direction must originate from source ‘independent’ of the complainant – whether proviso applies Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited R v Baskerville [1916] 2 KB 658, cited R v Kendrick [1997] 2 VR 699, cited R v Sailor [1994] 2 Qd R 342; [1993] QCA 23, cited R v Williams [2010] 1 Qd R 276; [2008] QCA 411, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	M J Copley QC for the appellant G J Cummings for the respondent
SOLICITORS:	Rennick Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent