R v NH - [2006] QCA 310

SUPREME COURT OF QUEENSLAND

CITATION:

R v NH [2006] QCA 310

PARTIES:

R
v
NH
(appellant)

FILE NO/S:

CA No 105 of 2006
DC No 347 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

25 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2006

JUDGES:

Jerrard and Holmes JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction in respect of count 3 allowed

2. Set aside the conviction for rape on count 3 and substitute a conviction of indecent dealing with a child under 16

3. Appeal against conviction otherwise dismissed

4. Parties are invited to make written submissions on the sentences on counts 1 to 4

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – appellant was convicted of two counts of indecent treatment of a child under the age of 16 (counts 1 and 2) and two counts of rape (counts 3 and 4) – two guilty verdicts for indecent dealing on counts 1 and 2 were each alternative verdicts to charges of rape on which the appellant was acquitted – whether there was sufficient evidence that the appellant digitally penetrated the complainant on the occasions that constituted the offences in counts 3 and 4

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether the convictions for rape on counts 3 and 4 were inconsistent with the acquittals for rape on counts 1 and 2 and resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – whether the trial judge erred in not drawing to the jury’s attention all the classes of evidence described as uncharged acts and in not giving appropriate directions on that topic

Criminal Code 1899 (Qld), s 349(2)(b), s 668F(2)
Evidence Act 1977 (Qld), s 93A

MacKenzie v R (1997) 190 CLR 348

COUNSEL:

R A East for the appellant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 24 March 2006 Mr N was convicted after a trial of two counts of indecent treatment of a child H under the age of 16 (counts 1 and 2) and convicted on two counts of rape of H (counts 3 and 4). The verdicts of guilty of indecent dealing on counts 1 and 2 were each alternative verdicts to charges of rape, on which he was acquitted on each of counts 1 and 2. On 4 April 2006, Mr N was sentenced to three years imprisonment on each of the…

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 NH

Details

AGLC: R v NH [2006] QCA 310
Case: [2006] QCA 310
Decision Date: 25 August 2006

CaseChat Overview and Summary

The appellant, R, appealed against his conviction on two counts of rape, arguing that the verdict was unreasonable or unsafe and that the trial judge erred in not drawing to the jury's attention all the classes of evidence described as uncharged acts and in not giving appropriate directions on that topic. The appellant was convicted of two counts of indecent treatment of a child under 16 and two counts of rape. The guilty verdicts for indecent dealing on counts 1 and 2 were each alternative verdicts to charges of rape on which the appellant was acquitted. The court was required to decide whether there was sufficient evidence that the appellant digitally penetrated the complainant on the occasions that constituted the offences in counts 3 and 4. The court also had to determine whether the convictions for rape on counts 3 and 4 were inconsistent with the acquittals for rape on counts 1 and 2 and resulted in a miscarriage of justice.

The court found that the appellant's convictions for rape on counts 3 and 4 were inconsistent with his acquittals for rape on counts 1 and 2. The court found that the evidence did not establish beyond reasonable doubt that the appellant had digitally penetrated the complainant on the occasions that constituted the offences in counts 3 and 4. The court found that the trial judge erred in not drawing to the jury's attention all the classes of evidence described as uncharged acts and in not giving appropriate directions on that topic. The court found that this error resulted in a miscarriage of justice and that the appellant's conviction on count 3 should be set aside and substituted with a conviction of indecent dealing with a child under 16.

The court allowed the appeal against conviction in respect of count 3 and set aside the conviction for rape on count 3 and substituted a conviction of indecent dealing with a child under 16. The appeal against conviction was otherwise dismissed. The parties were invited to make written submissions on the sentences on counts 1 to 4. The court found that the evidence did not establish beyond reasonable doubt that the appellant had digitally penetrated the complainant on the occasions that constituted the offences in counts 3 and 4. The court found that the trial judge's error in not drawing to the jury's attention all the classes of evidence described as uncharged acts and in not giving appropriate directions on that topic resulted in a miscarriage of justice.

Orders

Orders of the court

1. Appeal against conviction in respect of count 3 allowed

2. Set aside the conviction for rape on count 3 and substitute a conviction of indecent dealing with a child under 16

3. Appeal against conviction otherwise dismissed

4. Parties are invited to make written submissions on the sentences on counts 1 to 4

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v NH [2006] QCA 310
PARTIES:	R v NH (appellant)
FILE NO/S:	CA No 105 of 2006 DC No 347 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	25 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2006
JUDGES:	Jerrard and Holmes JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction in respect of count 3 allowed 2. Set aside the conviction for rape on count 3 and substitute a conviction of indecent dealing with a child under 16 3. Appeal against conviction otherwise dismissed 4. Parties are invited to make written submissions on the sentences on counts 1 to 4
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – appellant was convicted of two counts of indecent treatment of a child under the age of 16 (counts 1 and 2) and two counts of rape (counts 3 and 4) – two guilty verdicts for indecent dealing on counts 1 and 2 were each alternative verdicts to charges of rape on which the appellant was acquitted – whether there was sufficient evidence that the appellant digitally penetrated the complainant on the occasions that constituted the offences in counts 3 and 4 CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether the convictions for rape on counts 3 and 4 were inconsistent with the acquittals for rape on counts 1 and 2 and resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – whether the trial judge erred in not drawing to the jury’s attention all the classes of evidence described as uncharged acts and in not giving appropriate directions on that topic Criminal Code 1899 (Qld), s 349(2)(b), s 668F(2) Evidence Act 1977 (Qld), s 93A MacKenzie v R (1997) 190 CLR 348
COUNSEL:	R A East for the appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent