R v P - [1997] QCA 318

[1997] QCA 318

COURT OF APPEAL

MACROSSAN CJ
DAVIES JA
BYRNE J

CA No 170 of 1997

THE QUEEN

P Appellant

BRISBANE

DATE 21/07/97

JUDGMENT

DAVIES JA: The appellant was convicted in the District Court at Rockhampton on 4 April last on two counts of wilfully exposing children to an indecent book or indecent pictures, two counts of wilfully exposing the children to an indecent act and two counts of indecently dealing with the children. The appellant appeals against his conviction and also seeks leave to appeal against his sentence which was one of 18 months imprisonment. However Mr Rafter, who appeared for him before this Court, indicated that the application for leave to appeal against sentence was not pursued and for that reason, in my view, it should be refused.

The offences occurred in late June or early July 1996. The children, O and R, were both 12 years of age at the time. They were in Grade 7 at school and friends of F the daughter of the appellant's de facto wife who was also the same age and in their class.

Some months prior to the commission of the offences the appellant and his de facto wife had separated and F and her younger sister continued to live with the appellant. The night in question was the last weekend of the school holidays. The two girls stayed at the appellant's home as they were all going horse riding the next day. When the two girls and F were having a bath together the girls said they saw the appellant peeping at them through a window. They said he then came into the bathroom and started talking about sex. These incidents were denied by F and the appellant both of whom gave evidence.

The three girls then went to a waterbed in the main bedroom.

Shortly afterwards O said she saw the appellant walking on the verandah without any clothes on. He later came into the bedroom. O said he sat on the edge of the bed and started talking about his penis. He then got some pornographic magazines, one of which was later identified by her as a Penthouse Black Label magazine, and showed them to the girls. He then started "pulling himself" and that "white stuff started coming out". According to O he left the room but later came back. He then got into bed between these two girls. He touched O on the leg near her vagina though on the outside of her shorts. He then put his penis on R's face. He also asked the girls to show him their private parts, which they did, and O said that the appellant touched R "on the boob".

R said that the appellant hopped into bed and she saw him put his hand near O's vagina. He then obtained the magazines and showed them to the girls and pointed out things. He then started "playing with his penis and explaining, `This is how you wank'".…

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 P

Details

AGLC: R v P [1997] QCA 318
Case: [1997] QCA 318
Decision Date: 21 July 1997

CaseChat Overview and Summary

The appeal in the case of R v P was heard by the Queensland Court of Appeal, which comprised Macrossan CJ, Davies JA, and Byrne JA. The appellant was convicted in the District Court at Rockhampton of various offences involving the indecent exposure and dealing with two 12-year-old girls. The appeal was against his conviction, and a separate application for leave to appeal against his sentence was also considered but not pursued. The court's task was to assess the sufficiency of the evidence and the trial judge's handling of the appellant's prior conviction during cross-examination.

The primary legal issues concerned the sufficiency of the evidence to support the jury's verdict, the admissibility of the appellant's prior conviction during cross-examination, and whether the trial judge correctly limited the scope of the cross-examination. The court acknowledged that the jury was entitled to believe the complainants' testimony over that of the appellant and his de facto wife. The main focus of the appeal was on the trial judge's decision to permit the prosecution to cross-examine the appellant about his prior conviction for indecent dealing with a minor, a decision that the appellant argued was prejudicial and an abuse of discretion.

The Court of Appeal examined the statutory framework under the Evidence Act 1977, which allows for the introduction of a defendant's prior convictions under specific conditions. The trial judge had permitted the cross-examination on the basis that the appellant had testified to his good character and that the nature of the defence involved imputations on the complainants' character. The judge limited the cross-examination to the fact of the conviction, not the details, to mitigate potential prejudice. The court found that the trial judge correctly exercised his discretion and adequately directed the jury to minimize any prejudicial impact, concluding that the prejudicial effect did not outweigh the fairness required in the circumstances. The court also dismissed the appellant's argument about the limitation on his response to a question regarding his alleged impotence.

In conclusion, the Court of Appeal found no merit in the appeal and dismissed it. Additionally, the application for leave to appeal against the sentence was formally dismissed as it was not pursued. The appellant's conviction and sentence were therefore upheld.

Orders