R v McLucas

Case [2017] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLucas [2017] QCA 262

PARTIES:

R
v
McLUCAS, James Cecil
(appellant)

FILE NO/S:

CA No 101 of 2017
DC No 144 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 13 April 2017 (Lynch QC DCJ)

DELIVERED ON:

7 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2017

JUDGES:

Sofronoff P and Boddice and Flanagan JJ

ORDER:

The appeal should be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where, after a trial before a jury, the appellant was convicted of two counts of indecent dealing with a child under 16 (counts 3 and 4), one count of incest (count 6, but not guilty of the alternative charge of rape) and one count of exposure to an indecent act (count 8) – where, after a trial before a jury, the appellant was acquitted of one count of indecent dealing with a child under 16 (count 1), one count of exposing a child under 16 years to an indecent act (count 2),  one count of sexual assault (count 5) and one count of rape (count 7) – where the events occurred when the complainant was 14, 18 and 20 years old – where the complainant was 24 years old at the time of trial – where the complainant was the grandson of the appellant – where the jury was directed to consider each count separately – whether the convictions on counts 3, 4, 6 and 8 were unsafe and unsatisfactory because of the inconsistency with the acquittals on counts 1, 2, 5 and 7 – whether the verdicts cannot be logically reconciled or stand together

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where there were some inconsistencies in the complainant’s evidence to police and at trial – where there was approximately 18 months between the complainant proving a statement to police and the trial – where the prosecution case did not rest solely on the evidence of the complainant - whether the guilty verdicts of the jury on counts 3, 4, 6 and 8 were inconsistent with the acquittals on counts 1, 2, 5 and 7 – whether this inconsistency renders the verdicts either unreasonable or unsupported by the evidence – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of each element of counts 3, 4, 6 and 8

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Clapham[2017] QCA 99, applied
R v Conn; R v Conn; Ex parte Attorney-General (Qld)[2017] QCA 220, applied
R v GAW[2015] QCA 166, cited
R…

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AGLC
R v McLucas [2017] QCA 262
Case
[2017] QCA 262
Decision Date

CaseChat Overview and Summary

In the case of R v McLucas, the appellant, who is the grandfather of the complainant, was convicted by a jury on four counts related to indecent dealings with the complainant when she was under 16, incest, and exposure to an indecent act. The appellant was acquitted on four other counts, including indecent dealing with a child under 16, exposing a child under 16 years to an indecent act, sexual assault, and rape. The events in question occurred when the complainant was 14, 18, and 20 years old, and she was 24 at the time of the trial. The central issue for the court was whether the convictions on counts 3, 4, 6, and 8 were unsafe and unsatisfactory due to the inconsistency with the acquittals on counts 1, 2, 5, and 7. The court also considered whether the verdicts were unreasonable or insupportable considering the evidence presented.

The court examined the evidence provided by the complainant and other witnesses, noting some inconsistencies in the complainant's statements to police and at trial, as well as the time lapse between the statement and the trial. However, the court determined that the prosecution's case did not rely solely on the complainant's evidence. The jury was directed to consider each count separately, and the court concluded that it was reasonably open to the jury to be satisfied beyond reasonable doubt of each element of the counts on which the appellant was convicted. Therefore, the appeal against the convictions was dismissed, and the guilty verdicts were upheld as safe and satisfactory.

The court's reasoning was based on the overall evidence presented, including the complainant's testimony and the corroborating evidence from other witnesses. The inconsistencies noted did not undermine the jury's ability to convict the appellant on certain counts while acquitting him on others. The court found that the jury's verdicts were supported by the evidence and that the appellant's convictions on counts 3, 4, 6, and 8 were consistent with the acquittals on counts 1, 2, 5, and 7. The appeal was dismissed, and the convictions were upheld.

The final orders of the court were that the appeal against the convictions on counts 3, 4, 6, and 8 should be dismissed, and the convictions were to stand. The acquittals on counts 1, 2, 5, and 7 were affirmed. The court's decision was based on the sufficiency of the evidence and the jury's reasonable satisfaction of the elements of the charges on which the appellant was convicted.

Orders

Orders of the court

The appeal should be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown called six witnesses. The primary witness was the complainant. The Crown also called his mother, (EL), his father, (HC), and his father’s new partner, DQ. A general practitioner, Dr Grant Elmer, who had a consultation with the appellant on 9 March 2011, was also called.(a)The complainant’s evidence The complainant was born on 24 February 1992. Prior to early 2006 he lived with his family, consisting of his mother and father and two siblings, at F Street in North Ipswich. The land at this address was subdivided. The appellant lived with his wife in H Street which was around the corner from the complainant’s family home. Both houses, as well as a shed, were located on the subdivision. The conduct constituted by counts 1 and 2 was alleged to have occurred when the complainant was approximately 14. The complainant recalls staying one night at his grandparents’ house at H Street. He recalls taking a bath and the appellant entering the bathroom and telling the complainant to get out of the bath. As the complainant dried himself he felt the appellant’s hand “start fiddling” with his penis by “pulling it back and forth”. The complainant believes he told the appellant to stop. The appellant’s response was that he laughed and said to the complainant either, “don’t tell your father” or “don’t tell anyone”. The complainant gave the following evidence in respect of count 2:“… I couldn't see what he was doing, but I could see his hand down his pants, and he was – like, you could see the hand actions, like, through – through his pants.”[1]The complainant described “the hand actions” as a backwards and forwards motion.[1]AB 47, T1-35, lines 10-14. In cross-examination it was suggested to the complainant that when he was 13 or 14 he had been swimming in a creek or a river near A and had contracted an infection which caused his penis to become swollen. Initially the complainant refused to answer questions in relation to this incident on the basis that the topic was not covered in his written statement given to police.[2] Defence counsel requested the trial judge to direct the complainant to answer the questions. A voir dire was conducted and his Honour ruled that the evidence in relation to the incident was relevant. The complainant recalled his grandfather collecting him from an area south of A on the way to B. The complainant had been swimming in a river. He recalls having a bath at his grandparents’ house and that his penis was at that time swollen. The complainant’s recollection was that it was his grandmother rather than the appellant who assisted him in examining his swollen penis.[2]AB 101-102, T2-37, line 35 to T2-38, line 32. As to counts 3 and 4, the complainant recalled an incident that occurred at the shed at F Street. He was around 14 years of age at the time. He was assisting the appellant with some loading. This occurred after school. The complainant was in his school uniform. He made a request to the appellant for some money which was refused. The appellant then offered the complainant money and told him to remove his pants and underwear. The appellant commenced to masturbate the complainant (count 3). The appellant then put the complainant’s penis in his mouth and commenced sucking for approximately four to six minutes (count 4).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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