R v Pay

Case [2017] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAY [2017] QCA 185

PARTIES:

R
v
PAY
(appellant)

FILE NO/S:

CA No 226 of 2016
DC No 647 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 27 July 2016 (Richards DCJ)

DELIVERED ON:

29 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2017

JUDGES:

Sofronoff P and McMurdo JA and Bowskill J

ORDERS:

1.   The appeal against the conviction on count 1 is allowed.

2.   The conviction on count 1 is quashed.

3.   Direct that a verdict of acquittal be entered on count 1.

4.   The appeal against the conviction on counts 3, 4 and 5 is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty by a jury of one count of maintaining an unlawful sexual relationship with a child, one count of indecent treatment of a child under 12 and two counts of rape – where the complainant was 10 - 11 years old at the time of the offences and 28 years at the time of trial – where the complainant gave evidence of the particular acts giving rise to the charges of indecent treatment and rape, but not of any further offending or an ongoing relationship – where the Crown relied on letters written by the child to the appellant to demonstrate the existence of an ongoing intimate relationship between the complainant and the appellant – whether the verdicts were unreasonable or not supported by the evidence

Criminal Code (Qld), s 229B, s 668E(1)
Evidence Act 1977 (Qld), s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Kemp (No 2) [1998] 2 Qd R 510; [1996] QCA 514, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Bowskill J and with the orders her Honour proposes.

  2. McMURDO JA:  I agree with Bowskill J.

  3. BOWSKILL J:  After a trial in the District Court the appellant was found guilty by a jury of maintaining an unlawful sexual relationship with a child (count 1), indecent treatment of a child under 12 (count 3) and two counts of rape (counts 4 and 5).  In each case the complainant was the same child, aged 10 or 11, who lived in the house next door to…

Continue reading R v Pay

Sign in free to access the full text

Details
AGLC
R v Pay [2017] QCA 185
Case
[2017] QCA 185
Decision Date

CaseChat Overview and Summary

In the matter of R v Pay, the appellant was convicted by a jury of maintaining an unlawful sexual relationship with a child, indecent treatment of a child under 12 and rape. The complainant, who was 10-11 years old at the time of the offences, testified that the appellant touched her breasts and vagina in his pool while she was wearing a swimsuit. The appellant was acquitted of a separate count of maintaining an unlawful sexual relationship with the complainant between 1 May 2003 and 10 April 2004. The appellant appealed against his conviction on all counts, arguing that the verdicts were unreasonable or not supported by the evidence.

The court considered whether the verdicts were unreasonable or not supported by the evidence. The court noted that the complainant's evidence was limited to the particular acts giving rise to the charges of indecent treatment and rape, and did not include any further offending or an ongoing relationship. The Crown relied on letters written by the child to the appellant to demonstrate the existence of an ongoing intimate relationship between the complainant and the appellant. However, the court found that the complainant's evidence did not support the existence of an ongoing relationship. The court also found that the appellant's conviction on counts 3, 4 and 5 was supported by the evidence.

The court allowed the appeal against the conviction on count 1, quashed the conviction, directed that a verdict of acquittal be entered on count 1, and dismissed the appeal against the conviction on counts 3, 4 and 5. The appellant was acquitted of count 1 and his convictions on counts 3, 4 and 5 stood. The court found that the evidence did not support the existence of an ongoing relationship between the complainant and the appellant, and that the verdict on count 1 was unreasonable or not supported by the evidence.

Orders

Orders of the court

1. The appeal against the conviction on count 1 is allowed.

2. The conviction on count 1 is quashed.

3. Direct that a verdict of acquittal be entered on count 1.

4. The appeal against the conviction on counts 3, 4 and 5 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Count 2 on the indictment was a further alleged offence of maintaining an unlawful sexual relationship with the same child, between 1 May 2003 and 10 April 2004. However, the Crown entered a nolle prosequi in respect of that count, in response to a submission on behalf of the defendant at the close of the Crown’s case that there was no evidence to support it, because the complainant’s evidence was that, after the conduct the subject of counts 3, 4 and 5, of which she did give evidence, there was no other sexual activity.[7][7]AB 52.The evidence at trial The complainant gave evidence in the court room at the trial. An application that she be declared a special witness, and be permitted to give her evidence from a remote room, was refused at the start of the trial (although she was permitted to have a support person nearby). She was 28 at the time she gave her evidence, her date of birth being in April 1988. She gave evidence of living in a house in Deception Bay, and moving into that house when she was 10, with her parents and brother and sister. She described the appellant as a neighbour, living in the house next door, with his wife and two kids, A and J, who were a lot younger than the complainant.[8][8]AB 19. The complainant gave the following evidence, when asked to “think back to the first time anything inappropriate happened between” her and the appellant:“Are you able to tell us how old you were at that point? --- I think I was 10 or 12.Yep. And how long after you had moved into the house at … was this? --- I think it was about a month, if I remember.About a month, did you say? --- Yeah.And where were you at the time? --- What was the question?Okay. What were you doing that day? --- In the pool with the kids.Who do you mean by the kids? ---A and J.And whose pool were you in? ---Their pool.Okay. So that’s the [appellant’s] pool, is it? --- Yes.Okay. And what were you wearing? Do you remember? --- Full-piece suit – swimsuit.And what happened, [complainant]? --- We were playing in the pool probably couple of – I didn’t really know what time like – but I was pretty sure it was a couple of hours and then I got out and went to the toilet and then I come out of the toilet and I was starting to walk back to the pool and then before I got to the backdoor, [the appellant] grabbed my wrist and then pulled me back from the backdoor and then started touching my breasts and my vagina for about five, 10 minutes.What did he touch your breasts and vagina with? --- His hand.Okay. And was that contact made on your swimmers or your skin? --- Swimmers.Okay. And you said that you had used the toilet. Whereabouts was that located in the house? --- Underneath the house.Okay. And before [the appellant] touched you, did he say anything to you? --- No.While he was touching you, did he say anything to you? --- No.Did he say anything to you after he touched you? --- No.Do you recall how it was that the touching came to an end? --- What’s – not sure.Okay. So can you describe for us how he was touching you with his hand on your breasts? --- He was just rubbing them in a circle way.And was it both breasts or just - - -?--- I think it was just one.And what about your vagina? Are you able to describe for us - - -? --- He was just - - -- - - how he touched - - -? --- - - - rubbing the area.And did he only use one hand or two hands? --- One hand.Okay. And you said he touched you for a while. What do you recall occurring after that? --- I’m not sure.Okay. How did it come to an end? --- I just walked out, then started playing with the kids again.Okay. And did you say anything to [the appellant] at any point during this? --- No.”[9][9]AB 20-21.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.