R v Op - [2011] QCA 323

SUPREME COURT OF QUEENSLAND

CITATION:

R v OP [2011] QCA 323

PARTIES:

R
v
OP
(appellant)

FILE NO/S:

CA No 84 of 2011
DC No 209 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2011

JUDGES:

Margaret McMurdo P, Muir JA, Chesterman JA
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Muir JA concurring as to the orders made, Chesterman JA dissenting in part

ORDERS:

1. Appeal against conviction allowed.

2. Conviction and verdicts on counts 1, 2, 3, 6 and 7 set aside.

3. New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted after trial of five counts of indecent treatment with circumstances of aggravation – where the appellant was found not guilty of one count of indecent treatment with circumstances of aggravation and rape – whether the verdicts of guilty are inconsistent with the verdicts of acquittal

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the complaints evidence was unsupported by other evidence and there was considerable delay between when the offences were alleged to have been committed and the complaint to police – where there were various inconsistencies within the complainants evidence including inconsistent statements made to police and an apparent false account of serious sexual misconduct by the appellant to his school case manager – whether the guilty verdicts were unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – EFFECT OF MISDIRECTION OR NON-DIRECTION – where there were inconsistencies between the complainant’s evidence of the appellant’s sexual abuse and his preliminary and apparent false complaint of serious sexual misconduct by the appellant to his school case manager – where the trial judge referred to the school case manager’s evidence as potentially bolstering the complainants evidence – where the trial judge failed to warn the jury that the inconsistencies between his evidence and the evidence of the school case manager constituted an important reason to scrutinise the complainant’s evidence with great care – whether the failure to direct the jury in such terms amounted to an error of law constituting a miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1)

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied

COUNSEL:

J Allen for the appellant
G Cash for the respondent

SOLICITORS:

Winning Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant pleaded not…

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 Op

Details

AGLC: R v OP [2011] QCA 323
Case: [2011] QCA 323
Decision Date: 11 November 2011

CaseChat Overview and Summary

The appellant was convicted by a jury in the County Court of Victoria of five counts of indecent treatment with circumstances of aggravation. The appellant was acquitted on one count of indecent treatment with circumstances of aggravation and one count of rape. The appellant appealed against the convictions on the basis that the guilty verdicts were inconsistent with the verdicts of acquittal, that the verdicts were unreasonable and not supportable having regard to the evidence, and that the trial judge had failed to properly direct the jury in respect of the inconsistencies between the complainant’s evidence and the evidence of the school case manager. The appeal was allowed and a new trial ordered.

The legal issues in this appeal related to the consistency of the jury’s verdicts, the sufficiency of the evidence to support the guilty verdicts, and the adequacy of the trial judge’s directions to the jury. The Court of Appeal had to determine whether the jury’s verdicts were inconsistent, whether the guilty verdicts were unreasonable and not supportable having regard to the evidence, and whether the trial judge’s failure to properly direct the jury amounted to an error of law constituting a miscarriage of justice.

The Court of Appeal found that the verdicts were inconsistent because the jury acquitted the appellant of one count of indecent treatment with circumstances of aggravation and rape, but convicted him of other counts of indecent treatment with circumstances of aggravation. The Court held that the guilty verdicts were unreasonable and not supportable having regard to the evidence, because the only evidence of the alleged offences was the unsupported complaint of the complainant and there were various inconsistencies within that evidence. The Court also held that the trial judge’s failure to properly direct the jury in respect of the inconsistencies between the complainant’s evidence and the evidence of the school case manager amounted to an error of law constituting a miscarriage of justice. The Court of Appeal allowed the appeal against conviction, set aside the convictions and verdicts on counts 1, 2, 3, 6 and 7, and ordered a new trial.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Conviction and verdicts on counts 1, 2, 3, 6 and 7 set aside.

3. New trial ordered.

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 OP [2011] QCA 323
PARTIES:	R v OP (appellant)
FILE NO/S:	CA No 84 of 2011 DC No 209 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	11 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2011
JUDGES:	Margaret McMurdo P, Muir JA, Chesterman JA Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Muir JA concurring as to the orders made, Chesterman JA dissenting in part
ORDERS:	1. Appeal against conviction allowed. 2. Conviction and verdicts on counts 1, 2, 3, 6 and 7 set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted after trial of five counts of indecent treatment with circumstances of aggravation – where the appellant was found not guilty of one count of indecent treatment with circumstances of aggravation and rape – whether the verdicts of guilty are inconsistent with the verdicts of acquittal CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the complaints evidence was unsupported by other evidence and there was considerable delay between when the offences were alleged to have been committed and the complaint to police – where there were various inconsistencies within the complainants evidence including inconsistent statements made to police and an apparent false account of serious sexual misconduct by the appellant to his school case manager – whether the guilty verdicts were unreasonable and cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – EFFECT OF MISDIRECTION OR NON-DIRECTION – where there were inconsistencies between the complainant’s evidence of the appellant’s sexual abuse and his preliminary and apparent false complaint of serious sexual misconduct by the appellant to his school case manager – where the trial judge referred to the school case manager’s evidence as potentially bolstering the complainants evidence – where the trial judge failed to warn the jury that the inconsistencies between his evidence and the evidence of the school case manager constituted an important reason to scrutinise the complainant’s evidence with great care – whether the failure to direct the jury in such terms amounted to an error of law constituting a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1) Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
COUNSEL:	J Allen for the appellant G Cash for the respondent
SOLICITORS:	Winning Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent