R v Paq - [2014] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAQ [2014] QCA 11

PARTIES:

R
v
PAQ
(appellant)

FILE NO/S:

CA No 259 of 2013
DC No 255 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

14 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2014

JUDGES:

Chief Justice and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – the appellant was convicted of incest and acquitted of rape and maintaining – the appellant was the step-father of the complainant – the complainant was unable to give a particularised and specific account in relation to the count of maintaining – no direct evidence of express lack of consent was adduced at trial in relation to the count of rape – inconsistencies arose between the complainant’s evidence and the complainant’s sisters’ evidence – inconsistencies arose between the complainant’s statements to police and the complainant’s testimony – the matter rested entirely on the complainant’s credibility and reliability in relation to each charge – whether the guilty verdict returned for incest was unreasonable having regard to all of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – the appellant was convicted of incest and acquitted of rape and maintaining – the appellant was the step-father of the complainant – the complainant was unable to give a particularised and specific account in relation to the count of maintaining – no direct evidence of express lack of consent was adduced at trial in relation to the count of rape – inconsistencies arose between the complainant’s evidence and the complainant’s sisters’ evidence – inconsistencies arose between the complainant’s statements to police and the complainant’s testimony – the matter rested entirely on the complainant’s credibility and reliability in relation to each charge – whether the guilty verdict returned for incest was inconsistent with verdicts of not guilty for maintaining and rape

Criminal Code 1899 (Qld), s 349

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
R v WAC[2008] QCA 151, cited

COUNSEL:

C Reid for the appellant
P J McCarthy for the respondent

SOLICITORS:

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

CHIEF JUSTICE: The appellant, who is the female complainant’s stepfather, was convicted of incest, and acquitted of rape and maintaining. He appeals on the grounds that the conviction is unreasonable, and that the conviction is inconsistent with the acquittals. (Counsel for the appellant informed us that the only basis urged for unreasonableness is the suggested inconsistency.) The appellant was…

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 Paq

Details

AGLC: R v Paq [2014] QCA 11
Case: [2014] QCA 11
Decision Date: 14 February 2014

CaseChat Overview and Summary

The appellant, in this case, was convicted of incest by the Supreme Court of Victoria and acquitted of rape and maintaining. The court of appeal was asked to consider whether the verdict was unreasonable or insupportable in light of the evidence. The complainant in the case was the appellant's step-daughter, and the evidence presented at trial was largely based on her testimony. The court of appeal considered the inconsistencies in the complainant's evidence, both in relation to her sisters' evidence and her own prior statements to police.

The court of appeal noted that the matter rested entirely on the complainant's credibility and reliability in relation to each charge. The complainant was unable to give a particularised and specific account in relation to the count of maintaining, and there was no direct evidence of express lack of consent in relation to the count of rape. The court considered whether the guilty verdict returned for incest was inconsistent with the verdicts of not guilty for maintaining and rape. Ultimately, the court found that the verdict was not unreasonable or insupportable, and the appeal was dismissed.

The court of appeal held that the jury was entitled to accept the complainant's evidence as credible and reliable, and that the inconsistencies did not necessarily undermine her evidence. The court emphasised the importance of considering the evidence as a whole, and of giving proper weight to the complainant's testimony. The court also noted that the appellant had not adduced any evidence to contradict the complainant's version of events.

The final orders of the court were that the appeal be dismissed, and that the conviction for incest be upheld. The court did not consider it necessary to order a new trial, as the evidence was sufficient to support the guilty verdict. The court acknowledged that the case turned on difficult and sensitive issues, but emphasised the importance of ensuring that justice is done in each individual case.

Orders

Orders of the court

Appeal dismissed.

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 PAQ [2014] QCA 11
PARTIES:	R v PAQ (appellant)
FILE NO/S:	CA No 259 of 2013 DC No 255 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	14 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2014
JUDGES:	Chief Justice and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – the appellant was convicted of incest and acquitted of rape and maintaining – the appellant was the step-father of the complainant – the complainant was unable to give a particularised and specific account in relation to the count of maintaining – no direct evidence of express lack of consent was adduced at trial in relation to the count of rape – inconsistencies arose between the complainant’s evidence and the complainant’s sisters’ evidence – inconsistencies arose between the complainant’s statements to police and the complainant’s testimony – the matter rested entirely on the complainant’s credibility and reliability in relation to each charge – whether the guilty verdict returned for incest was unreasonable having regard to all of the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – the appellant was convicted of incest and acquitted of rape and maintaining – the appellant was the step-father of the complainant – the complainant was unable to give a particularised and specific account in relation to the count of maintaining – no direct evidence of express lack of consent was adduced at trial in relation to the count of rape – inconsistencies arose between the complainant’s evidence and the complainant’s sisters’ evidence – inconsistencies arose between the complainant’s statements to police and the complainant’s testimony – the matter rested entirely on the complainant’s credibility and reliability in relation to each charge – whether the guilty verdict returned for incest was inconsistent with verdicts of not guilty for maintaining and rape Criminal Code 1899 (Qld), s 349 M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited R v WAC[2008] QCA 151, cited
COUNSEL:	C Reid for the appellant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent