R v McGrady - [2020] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrady [2020] QCA 192

PARTIES:

R
v
McGRADY, Clifford James
(appellant)

FILE NO/S:

CA No 172 of 2018
DC No 1216 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 29 June 2018 (Rosengren DCJ)

DELIVERED ON:

8 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2020

JUDGES:

Fraser, Morrison and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of two counts of indecent treatment of a child under 16 – where the complainant gave evidence that the appellant touched her genitals twice while they were in a swimming pool – where the complainant told her younger sister about the first occasion soon after it occurred – where the complainant told her mother and older sister about the incidents that evening – where the complainant gave a statement to police shortly thereafter – where the appellant argues that aspects of the complainant’s account are implausible – where the appellant points to inconsistencies between the complainant’s account and evidence given by other witnesses – whether it was reasonably open to the jury to conclude the appellant was guilty of the offences beyond reasonable doubt – whether the verdicts are unsafe and unreasonable and cannot be supported having regard to the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the primary judge should have given a “Jones direction”, informing the jury that they needed to be satisfied that the alleged touching of the complainant was motivated by sexual interest – where a document was given to the jury which identified the elements of the offence charged, which included that the dealing with the complainant was indecent – where the document explained the meaning of “indecent” in this context – where the primary judge directed the jury that they needed to be satisfied that the touching was deliberate and intentional, not accidental – whether the trial erred in failing to give a “Jones direction”

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the trial miscarried because the trial judge failed to leave accident or mistake of fact to the jury – where the appellant submits the jury should have been told that it was open on the evidence to conclude that the appellant did not intend to touch the complainant’s genitals – whether the trial miscarried due to the primary judge’s failure to give directions on accident and mistake of fact

Criminal Code (Qld), s 23

R v Harkin (1989) 38 A Crim R 296, cited
R v Hayward

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 McGrady

Details

AGLC: R v McGrady [2020] QCA 192
Case: [2020] QCA 192
Decision Date: 8 September 2020

CaseChat Overview and Summary

The appellant was convicted in the Supreme Court of the State of Victoria of two counts of indecent treatment of a child under 16. The conviction was appealed to the Court of Appeal, where the appellant argued that the verdicts were unreasonable or insupportable having regard to the evidence, and that the trial had miscarried due to misdirection and non-direction by the trial judge. The appeal was dismissed by the Court of Appeal.

The appeal presented several legal issues for the court to decide. The appellant argued that the verdicts were unreasonable or insupportable because aspects of the complainant’s account were implausible, and because there were inconsistencies between the complainant’s account and evidence given by other witnesses. The appellant also argued that the trial miscarried because the trial judge failed to give a “Jones direction” to the jury, which would have informed them that they needed to be satisfied that the alleged touching was motivated by sexual interest. Additionally, the appellant argued that the trial miscarried because the trial judge failed to leave accident or mistake of fact to the jury, which would have allowed them to conclude that the appellant did not intend to touch the complainant’s genitals.

The Court of Appeal held that the verdicts were open to the jury, and that it was reasonably open to them to conclude that the appellant was guilty of the offences beyond reasonable doubt. The court found that the complainant’s evidence was credible, and that the inconsistencies between her account and evidence given by other witnesses did not undermine her credibility. The court also found that the trial judge did not err in failing to give a “Jones direction” because the document given to the jury identified the elements of the offence charged, and explained the meaning of “indecent” in this context. Finally, the court found that the trial did not miscarry because the trial judge directed the jury that they needed to be satisfied that the touching was deliberate and intentional, not accidental.

The Court of Appeal dismissed the appeal and affirmed the conviction of the appellant. The court found that the verdicts were open to the jury, and that it was reasonably open to them to conclude that the appellant was guilty of the offences beyond reasonable doubt. The court also found that the trial did not miscarry due to misdirection or non-direction by the trial judge.

Orders

Orders of the court

Appeal 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 McGrady [2020] QCA 192
PARTIES:	R v McGRADY, Clifford James (appellant)
FILE NO/S:	CA No 172 of 2018 DC No 1216 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 29 June 2018 (Rosengren DCJ)
DELIVERED ON:	8 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2020
JUDGES:	Fraser, Morrison and McMurdo JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of two counts of indecent treatment of a child under 16 – where the complainant gave evidence that the appellant touched her genitals twice while they were in a swimming pool – where the complainant told her younger sister about the first occasion soon after it occurred – where the complainant told her mother and older sister about the incidents that evening – where the complainant gave a statement to police shortly thereafter – where the appellant argues that aspects of the complainant’s account are implausible – where the appellant points to inconsistencies between the complainant’s account and evidence given by other witnesses – whether it was reasonably open to the jury to conclude the appellant was guilty of the offences beyond reasonable doubt – whether the verdicts are unsafe and unreasonable and cannot be supported having regard to the whole of the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the primary judge should have given a “Jones direction”, informing the jury that they needed to be satisfied that the alleged touching of the complainant was motivated by sexual interest – where a document was given to the jury which identified the elements of the offence charged, which included that the dealing with the complainant was indecent – where the document explained the meaning of “indecent” in this context – where the primary judge directed the jury that they needed to be satisfied that the touching was deliberate and intentional, not accidental – whether the trial erred in failing to give a “Jones direction” CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits that the trial miscarried because the trial judge failed to leave accident or mistake of fact to the jury – where the appellant submits the jury should have been told that it was open on the evidence to conclude that the appellant did not intend to touch the complainant’s genitals – whether the trial miscarried due to the primary judge’s failure to give directions on accident and mistake of fact Criminal Code (Qld), s 23 R v Harkin (1989) 38 A Crim R 296, cited R v Hayward