R v Pardon - [2020] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pardon [2020] QCA 290

PARTIES:

R
v
PARDON, Frank James
(appellant)

FILE NOS:

CA No 20 of 2020
DC No 308 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 11 December 2019 (Cash QC DCJ)

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2020

JUDGES:

Sofronoff P and Philippides JA and Davis J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 10 counts of indecent treatment of a child under 16 years and one count of maintaining a sexual relationship with a child with a circumstance of aggravation – where the appellant was convicted on all but one of these counts – where the appellant submits that the jury’s guilty verdicts were unsafe and unsatisfactory – where the appellant points to inconsistencies in the evidence relating to counts 3 and 4, inconsistencies in the complainant’s preliminary complaints and submits that her evidence was inherently unreliable due to the complainant receiving hypnotherapy – whether the jury’s guilty verdicts were unsafe or unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where a pretextual phone call between the complainant and the appellant was tendered as evidence at trial – where the appellant submits that a miscarriage of justice has been occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of “the confessional statements” – whether the learned trial judge misdirected the jury

R v BDJ[2020] QCA 27, cited
Subramaniam v Public Prosecutor [1956] 1 WLR 965; [1956] UKPC 21, cited
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, cited

COUNSEL:

A M Hoare with P Wilson for the appellant (pro bono)
D Nardone for the respondent

SOLICITORS:

Worcester & Co for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The appellant was charged with 10 counts of indecent treatment of a child under 16 years and one count of maintaining a sexual relationship with a child with a circumstance of aggravation. He was convicted on all but one of these counts.[1]
[1]The jury returned a verdict of not guilty on count 6 which was one of the counts of indecent treatment.
He has appealed on the ground that the jury’s guilty verdicts were unsafe and unsatisfactory and also on the ground that a miscarriage of justice has been occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of “the confessional statements”.
At the time of these offences the appellant was in his mid-40s. The complainant was 14 years old. The complainant gave…

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 Pardon

Details

AGLC: R v Pardon [2020] QCA 290
Case: [2020] QCA 290
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for various child sex offences. The trial resulted in convictions on nine of the ten counts of indecent treatment of a child under 16 years and the single count of maintaining a sexual relationship with a child with a circumstance of aggravation. The appellant contended that the jury’s verdicts were unsafe and unsatisfactory, pointing to inconsistencies in the evidence and in the complainant’s preliminary complaints, as well as contending that the complainant’s evidence was inherently unreliable due to her having received hypnotherapy. The appellant also submitted that the trial judge misdirected the jury in relation to the use they could make of a phone call between the appellant and the complainant that was tendered as evidence at trial.

The court considered the appellant’s arguments and determined that they did not demonstrate that the jury’s verdicts were unreasonable or unsatisfactory having regard to the evidence. The court found that the discrepancies in the evidence and the complainant’s preliminary complaints did not undermine the overall reliability of her evidence, and that there was no basis to conclude that the hypnotherapy rendered her evidence inherently unreliable. The court also found that the trial judge’s directions to the jury regarding the phone call were appropriate and did not occasion a miscarriage of justice.

Accordingly, the appeal was dismissed. The convictions and sentences were affirmed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Pardon [2020] QCA 290
PARTIES:	R v PARDON, Frank James (appellant)
FILE NOS:	CA No 20 of 2020 DC No 308 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 11 December 2019 (Cash QC DCJ)
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2020
JUDGES:	Sofronoff P and Philippides JA and Davis J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 10 counts of indecent treatment of a child under 16 years and one count of maintaining a sexual relationship with a child with a circumstance of aggravation – where the appellant was convicted on all but one of these counts – where the appellant submits that the jury’s guilty verdicts were unsafe and unsatisfactory – where the appellant points to inconsistencies in the evidence relating to counts 3 and 4, inconsistencies in the complainant’s preliminary complaints and submits that her evidence was inherently unreliable due to the complainant receiving hypnotherapy – whether the jury’s guilty verdicts were unsafe or unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where a pretextual phone call between the complainant and the appellant was tendered as evidence at trial – where the appellant submits that a miscarriage of justice has been occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of “the confessional statements” – whether the learned trial judge misdirected the jury R v BDJ[2020] QCA 27, cited Subramaniam v Public Prosecutor [1956] 1 WLR 965; [1956] UKPC 21, cited Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, cited
COUNSEL:	A M Hoare with P Wilson for the appellant (pro bono) D Nardone for the respondent
SOLICITORS:	Worcester & Co for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent