District Court at Brisbane – Date of Conviction and Sentence: 15 October 2020 (Clare SC DCJ)
DELIVERED ON:
8 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
19 April 2021
JUDGES:
Sofronoff P and Morrison JA and Ryan J
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of indecent treatment of a child under 16 who was under his care – where the appellant was acquitted on a second count – where the appellant submitted that the complainant was a “significantly unreliable narrator” based on uncertainty in her evidence relating to her age at the time of the offending – where the complainant omitted post-offence contact with the appellant during interview with police – where the appellant contends that preliminary complaint evidence was inconsistent – where the appellant submitted that the unreasonableness of the jury’s verdict was reinforced by the fact that the appellant gave evidence denying the allegations – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty of one count of indecent treatment of a child under 16 who was under his care – where the applicant was sentenced to imprisonment for 18 months to be suspended after serving nine months with an operational period of three years – where the appellant contended at sentencing for a sentence of nine to 12 months imprisonment – whether the sentence was manifestly excessive
B Power for the appellant/applicant M T Whitbread for the respondent
SOLICITORS:
Fisher Dore Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant was found guilty of one count of indecent treatment of a child under 16 who was under his care. He was acquitted on a second count of indecent treatment of the same complainant which he was alleged to have committed three years earlier. The appellant now appeals against his conviction and seeks leave to appeal against his sentence.
The complainant was born on 9 April 1998…
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.
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Details
AGLC
R v Miller [2021] QCA 126
Case
[2021] QCA 126
Decision Date
CaseChat Overview and Summary
In the case of R v Miller, the appellant, Miller, appealed against his conviction for one count of indecent treatment of a child under 16 who was under his care, as well as against his sentence. The case was heard in the court of appeal. Miller was acquitted on a second count of indecent treatment. The primary issue for the court was to determine whether the verdict was unreasonable or insupportable having regard to the evidence, particularly focusing on the reliability of the complainant's testimony. Miller argued that the complainant was an unreliable witness due to inconsistencies and omissions in her evidence.
The court examined the evidence presented during the trial and considered Miller's arguments about the complainant's credibility. The court found that the inconsistencies and omissions in the complainant's evidence did not render her testimony unreliable to the extent that the jury's verdict was unreasonable. The court also noted that Miller had given evidence denying the allegations, which did not necessarily undermine the jury's acceptance of the complainant's evidence. The court concluded that the verdict was not unreasonable or insupportable having regard to the evidence.
In relation to the appeal against the sentence, the court considered whether the sentence was manifestly excessive. Miller had been sentenced to imprisonment for 18 months, suspended after serving nine months with an operational period of three years. Miller argued for a sentence of nine to 12 months imprisonment. The court found that the sentence was within the appropriate range and was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was refused. The final orders 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.