R v Moffat

[2003] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:	R v Moffat [2003] QCA 95
PARTIES:	R v MOFFAT, Edwin John (appellant/applicant)
FILE NO/S:	CA No 439 at 2002 DC No 12 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING  COURT:	District Court at Cairns
DELIVERED EX	11 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2003
JUDGES:	de Jersey CJ, McPherson JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Dismiss the appeal against conviction Grant application and allow the appeal against sentence by suspending it for an operational period of two years after the applicant has served a term of six months imprisonment

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND

INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – whether the trial judge erred in directing the jury by saying ‘if as reasonable people you have a doubt about the accused’s guilt and you think your doubt is a reasonable one, then you have a reasonable doubt’

CRIMINAL LAW – JURISDICTON, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – GENERALLY – whether failure to plead guilty can be considered to increase sentence – whether traumatic effect on child of cross examination was impermissible taken into account

Siganto v The Queen [1998] 194 CLR 646, applied R v Phuc Minh Pham (CA 435 of 1995), considered R v Read (CA 178 of 1993), considered

R v T (CA 33 of 1994), considered

COUNSEL:	M J Griffin SC appeared for the appellant/applicant M J Copley appeared for the respondent
SOLICITORS:	Legal Aid Queensland appeared for the appellant/applicant Director of Public Prosecutions (Queensland) appeared for the respondent

THE CHIEF JUSTICE: I will invite Justice McPherson to deliver the first judgment.

McPHERSON JA: This is an appeal against conviction and sentence after a trial in the District Court arising out of a single count of indecent dealing with a girl aged 10 which took place on 6th January 2002.

The appellant was the groundsman at a caravan park at which the complainant and her sister used to go swimming at the swimming pool. A small fee was charged for this privilege but sometimes the appellant would give the girls an ice-cream or soft drink for helping him tidy up leaves and palm fronds, and at times he would let them swim free of charge.

In the afternoon of 6 January, the complainant went to the caravan park on two occasions. The first was around 1.00 p.m. She returned home, but later went out again, intending to see if a friend was coming for a sleep over at her place. The friend was not going to do so, so the complainant went late in the afternoon to see the…