R v McNamara

Case [1998] QCA 405
IN THE COURT OF APPEAL [1998] QCA 405
SUPREME COURT OF QUEENSLAND
C.A. No. 261 of 1998
Brisbane
[R v McNamara]

THE QUEEN

v.

GEORGE HAMILTON McNAMARA

Appellant

McPherson JA
Thomas JA

White J

Judgment delivered 1 December 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS ON COUNTS 1, 3, 4, 5, 6 AND 7 SET ASIDE. RE-TRIALS ORDERED ON COUNTS 1, 3, 4, 5, 6 AND 7.

CATCHWORDS:  CRIMINAL - whether verdicts inconsistent - misdirection by
trial judge on meaning of “reasonable doubt” - proviso not
applicable - dangerous to go beyond conventional
directions.
Green v R (1971) 126 CLR 28
Jones v R (1997) 149 ALR 598
Mackenzie v R (1996) 190 CLR 348
Wilde v R (1987-1988) 164 CLR 356
Counsel:  Mr A.J. Rafter for the appellant.
Mr M.C. Chowdhury for the respondent.
Solicitors:  Legal Aid Queensland for the appellant.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date:  24 November 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 1 December 1998

  1. I have read and agree with the reasons of Thomas J.A. and with the orders he

    proposes.

    REASONS FOR JUDGMENT - THOMAS JA

    Judgment delivered 1 December 1998

  2. The appellant stood trial in the District Court on seven charges of indecent dealing with a child under the age of 12. He was acquitted on count 2 and convicted on all other counts.

  3. He raises two primary grounds of appeal, namely inconsistency in the verdicts, and misdirection by the learned trial judge on the meaning of reasonable doubt. A third ground, that the verdicts are unsafe and unsatisfactory, is based upon the submissions in relation to the alleged inconsistency of the verdicts.

  4. The sexual misconduct of the appellant is alleged to have occurred between 1990 and 1994 when the complainant was aged between 7 and 11 years. The appellant was a friend of the complainant’s father and the offences are alleged to have occurred at various places when the complainant and her brothers visited the appellant at respective addresses at which he resided. Some of these were holiday occasions. The first incident, when the complainant was seven or eight years old involved the appellant touching the complainant on the outside of her togs for several minutes when the complainant was standing in waist deep water at Series Creek. He rubbed the top of her legs and the area of her vagina by “coming in behind the back of my legs and through my legs that way”. The second count concerned the time when the complainant was swimming with her father, her brothers and the appellant in the surf at Rainbow Beach. The appellant who was assisting her to catch waves is said to have started to rub the back part of her legs and to have started to rub the vaginal area on the outside of her togs while she was on her boogie board in the surf.

  5. All…

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AGLC
R v McNamara [1998] QCA 405
Case
[1998] QCA 405
Decision Date

CaseChat Overview and Summary

In the matter of R v McNamara, the appellant was convicted in the District Court on six charges of indecent dealing with a child under the age of 12, with the seventh count resulting in an acquittal. The appellant has appealed against his convictions, arguing that the verdicts are inconsistent and that the trial judge misdirected the jury on the meaning of "reasonable doubt". The appellant was a friend of the complainant’s father and the alleged offences occurred between 1990 and 1994 when the complainant was aged between 7 and 11 years. The incidents occurred at various places, including at the appellant’s residence and during holidays. The first incident involved the appellant touching the complainant on the outside of her togs in waist-deep water at Series Creek. The remaining counts involve distinct incidents on beds or bunks and at a picnic area.

The legal issues before the court were whether the verdicts were inconsistent and whether the trial judge misdirected the jury on the meaning of "reasonable doubt". The court considered the approach of an appellate court when verdicts are said to be inconsistent, as outlined in Mackenzie v R. The court noted that the appellant must satisfy the court that the two verdicts cannot stand together, meaning no reasonable jury could have arrived at the conclusion. The court also considered whether the trial judge’s direction on the meaning of "reasonable doubt" was misdirection. The court noted that it is dangerous to go beyond conventional directions when explaining the concept of "reasonable doubt" to a jury.

The court found that the appellant had not satisfied the court that the verdicts were inconsistent. The court noted that the jury's rejection of the complainant's story could only be explained by the acquittal on the second count. The court also found that the trial judge's direction on the meaning of "reasonable doubt" was not a misdirection. The court noted that the trial judge's direction was within the conventional directions given to a jury. The court concluded that the convictions were safe and satisfactory.

The court dismissed the appeal and affirmed the convictions. The court noted that the jury had properly considered the evidence and had come to a reasonable conclusion. The court also noted that the trial judge's direction on the meaning of "reasonable doubt" was not a misdirection. The court concluded that the convictions were safe and satisfactory.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
I have read and agree with the reasons of Thomas J.A. and with the orders he proposes. REASONS FOR JUDGMENT - THOMAS JA Judgment delivered 1 December 1998 The appellant stood trial in the District Court on seven charges of indecent dealing with a child under the age of 12. He was acquitted on count 2 and convicted on all other counts. He raises two primary grounds of appeal, namely inconsistency in the verdicts, and misdirection by the learned trial judge on the meaning of reasonable doubt. A third ground, that the verdicts are unsafe and unsatisfactory, is based upon the submissions in relation to the alleged inconsistency of the verdicts. The sexual misconduct of the appellant is alleged to have occurred between 1990 and 1994 when the complainant was aged between 7 and 11 years. The appellant was a friend of the complainant’s father and the offences are alleged to have occurred at various places when the complainant and her brothers visited the appellant at respective addresses at which he resided. Some of these were holiday occasions. The first incident, when the complainant was seven or eight years old involved the appellant touching the complainant on the outside of her togs for several minutes when the complainant was standing in waist deep water at Series Creek. He rubbed the top of her legs and the area of her vagina by “coming in behind the back of my legs and through my legs that way”. The second count concerned the time when the complainant was swimming with her father, her brothers and the appellant in the surf at Rainbow Beach. The appellant who was assisting her to catch waves is said to have started to rub the back part of her legs and to have started to rub the vaginal area on the outside of her togs while she was on her boogie board in the surf. All the other counts involve distinct incidents on beds or bunks and at a picnic area. A helpful statement of the approach of an appellate court when verdicts are said to be inconsistent, is contained in Mackenzie v R[1]: "[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand." [1] (1996) 190 CLR 348, 366 per Gaudron, Gummow and Kirby JJ adopting a statement of Devlin J in R v Stone, unreported, but quoted in R v Hunt [1968] 2 QB 433, 438. Extensive discussion of the fine lines that separate cases where appellate intervention is necessary from those where it is not has occurred in a number of recent decisions and it is enough to note the observations in Mackenzie v The Queen[2] and in Jones v R [3]. In the particular circumstances of Jones, the court concluded that an acquittal on one count could only be explained upon the jury’s rejection of the complainant’s story and that “the only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count”. The court concluded that “it is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts”. [2] (1996) 190 CLR 348, 366-370. [3] (1997) 149 ALR 598.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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