THE PRESIDENT: The appellant was convicted after a trial of one count of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation and five counts of rape. The jury were unable to reach a verdict on an additional count of rape. The appellant was sentenced to 11 years' imprisonment on the maintaining charge and to eight years' concurrent imprisonment on each of the rape charges.

He contends that the guilty verdicts are unsafe as there was no logical or rational basis upon which the jury could have arrived at different verdicts. In his oral submissions he has expanded and touched upon other grounds. He contends that the convictions should be set aside and that the sentence was manifestly excessive.

The appeal against conviction:

The complainant was 14 at the trial and nine or 10 years old during the period of the offences, each of which was charged as occurring in the eight month period between 1 November 1996 and 1 July 1997. The first count was the offence of maintaining and the remaining offences were particulars of that count.

The complainant gave evidence that her parents had separated and she was living at a caravan park in suburban Brisbane with her mother. She was nine years old. The appellant also resided in the caravan park. He was known as "the mad hatter" because he always wore a straw hat. She called him Rob. One day he asked her if she wanted a drink and she went into his caravan. He started to kiss her, putting his tongue in her mouth. He told her to take off her shorts, shirt and underwear and she obeyed. He took off his clothes. They had been watching a video, "Monster Trucks", and he rubbed her back. He told her to sit on his lap. He rubbed his penis around her vagina. The penis went into her vagina. He manipulated his penis with his hand. As his penis entered her vagina it hurt. He moved it around inside her vagina. She returned home at a pre-appointed time. These facts constituted count 2, the first offence to be committed.

Count 3 occurred in the following way. On one occasion she attended the Capalaba Shopping Centre with the appellant with her mother's permission. The appellant stopped on the way at a park near water, about 20 minutes or half an hour from the shopping centre. He got out of the van and came around to the passenger side of the car where she was seated. The sun was going down. He got in the car and they talked. He removed her shorts and underpants. She was sitting on his lap and he pushed her forward a bit. He pulled his own pants down some way and made her sit on his penis. His penis…

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 Myers

Details

AGLC: R v Myers [2002] QCA 143
Case: [2002] QCA 143
Decision Date: 19/04/2002

CaseChat Overview and Summary

In this case, the appellant, Robert Hayes Myers, appealed against his convictions and sentences for various sexual offences against a child. The appeal was heard by the Queensland Court of Appeal. The appellant was convicted of one count of maintaining a sexual relationship with a child under 16 years of age with a circumstance of aggravation and five counts of rape. The jury could not reach a verdict on an additional count of rape. The appellant was sentenced to 11 years' imprisonment for the maintaining charge and eight years' concurrent imprisonment for each of the rape charges. The appellant argued that the guilty verdicts were unsafe and that the sentence was manifestly excessive.

The legal issues before the court were whether the verdicts were so inconsistent as to render the convictions unsafe and whether the sentence was manifestly excessive. The court considered the evidence presented during the trial and the arguments made by the appellant in his appeal. The court found that the jury was entitled to accept the complainant's evidence on counts 1 to 4 and 6 to 7 inclusive, even though one or more jurors was not satisfied beyond reasonable doubt of the complainant's less certain evidence on count 5. The inability to reach a verdict on count 7 was not so inconsistent as to make the other six convictions unsafe or unsatisfactory. The court also found that the sentence imposed was within a proper exercise of the sentencing discretion.

The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The convictions and sentences were upheld. The decision of the court is binding on the parties involved and sets a precedent for similar cases in the future.

Orders