R v PAZ

Case [2017] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAZ [2017] QCA 263

PARTIES:

R
v
PAZ
(appellant)

FILE NO/S:

CA No 323 of 2016
DC No 344 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 14 November 2016 (Robertson DCJ)

DELIVERED ON:

7 November 2017

DELIVERED AT:

Brisbane

HEARING DATES:


2 June 2017; 18 August 2017

JUDGES:

Morrison and Philippides JJA and Boddice J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 16 counts of child sex offences committed against his step-son – where the appellant was convicted of 11 of those counts after a five day trial – where the appellant appeals the conviction on the ground that the verdicts are unreasonable and cannot be supported by the evidence – where the principal witness was the complainant – where evidence was also given by the complainant’s mother, siblings, and friends – where the appellant submitted that there were problems with the reliability of the complainant’s evidence and a lack of impartial supporting evidence – where the respondent submitted that the evidence was rightly accepted by the jury and that the trial judge gave appropriate directions about issues in the evidence – where this Court is required to make an independent assessment of the evidence – whether the evidence supports the verdict – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – where the appellant was convicted of sodomy, and acts of sodomy formed part of the offence of maintaining a sexual relationship with a child – where amendments to the Criminal Code (Qld) abolished the offence of unlawful sodomy, amended the prescribed age for the purposes of the offence of maintaining an unlawful sexual relationship to 16 years, and lowered the age of consent for anal intercourse to 16 shortly before the appellant’s trial – where the appellant submitted that the changes to the Code meant that the charges of sodomy, and the charge of maintain a sexual relationship with a child under 18 years were invalid – where that submission is based on the relationship between the Criminal Code and the Acts Interpretation Act 1954 (Qld) – where s 11 of the Code requires a criminal act to be an offence at the time it occurred and when the person is charged for it to be punishable – where the issue was therefore when the appellant was charged – where there are multiple definitions of ‘charge’ in Queensland statutes – where the appellant also contends that s 20 of the Acts Interpretation Act has a significant impact on the validity of the appellant’s punishment – where case law suggests that liability for punishment arises when the criminal act…

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Details
AGLC
R v PAZ [2017] QCA 263
Case
[2017] QCA 263
Decision Date

CaseChat Overview and Summary

The appellant was convicted in the Supreme Court of Queensland of 11 counts of child sex offences, including sodomy, committed against his step-son. The appellant appealed his conviction on several grounds, including the reasonableness of the verdict, the validity of the charges following amendments to the Criminal Code, and alleged misdirections by the trial judge.

The legal issues before the court were whether the jury’s verdicts were unreasonable and unsupported by the evidence, whether the appellant was properly charged with offences that were decriminalised before his trial, and whether the trial judge’s directions to the jury regarding consent in relation to the sodomy charges were correct. The court had to conduct an independent assessment of the evidence and determine if it supported the jury's verdicts. Additionally, the court needed to consider the impact of legislative changes on the validity of the charges and the appellant’s conviction.

The Court found that the evidence was sufficient to support the jury's verdicts, despite the appellant's claims of unreliability and lack of supporting evidence. Regarding the legislative changes, the Court determined that the appellant was properly charged with offences that existed at the time the acts were committed and that his liability for punishment was preserved under the Acts Interpretation Act. Finally, the Court held that any error in the trial judge's directions did not result in a miscarriage of justice because the charges remained lawful at the time the offences were committed.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The principal witness at the trial was K. Other evidence came from:(a)K’s mother, F;(b)S, a neighbour for a time;(c)N, another neighbour;(d)M and A, the owners of a shed/residence where the appellant and K lived for a time;(e)Q, M and A’s son;(f)K’s siblings T and X;(g)H, a childhood friend;(h)A and L, owners of a guest house where the appellant and K stayed; and(i)two investigating police officers.K’s evidence K gave evidence of meeting the appellant when K was in primary school and the appellant was a teacher there. He lived with his mother (F) and younger siblings, T and X. The appellant married F in 1999 when K was almost 11. Soon after the wedding the family moved to Rosedale. F worked and that, together with shopping for the family, meant she was absent from the home from time to time, when the appellant was in charge of the children’s care.Count 3 – indecent treatment K said he could distinctively remember the first incident with the appellant. K and the appellant were sleeping in the lounge room on air mattresses. The appellant put his hands down K’s chest and started rubbing his genitals.[3] K tried to wriggle away but the appellant signalled him to remain quiet. The appellant masturbated K to ejaculation. It was the first time K had ejaculated.[4][3]Appeal Book (AB) 37.[4]AB 38, 121.Count 4 – indecent treatment K said “that type of scenario happened multiple times … in the lounge room”.[5] He recalled another specific occasion at Rosedale. The appellant called K in from his bedroom to the lounge room, while T and X were outside. The appellant rubbed himself against K and said, referring to an erection, “see what you do to me”. The appellant then laid K on the bed in the master bedroom and performed oral sex. When K tried to squirm and roll the appellant told him to “relax, it was okay, that he wasn’t going to hurt me”. While performing oral sex the appellant masturbated himself, making groaning and grunting noises. K managed to get away and went outside. K said his memory of that event was “very vivid, because it was the first time that it wasn’t sleeping out on the air mattress … the first time it had been done in the bedroom and him performing that oral sex on me”.[6][5]AB 40 line 15.[6]AB 40-41.Count 5 – indecent treatment After the family moved again, to Baffle Creek Road, F and the appellant had a child together, R. K and his brother X shared a room, and his sisters, T and R, shared another room. K said he remembered a particular incident when he and X were doing homework and the appellant told X to go for a ride on his bike. The appellant took K into the master bedroom and pushed himself against K, fondling him. He took K’s clothes off and performed oral sex, initially with K standing and then with K on the bed. K ejaculated.[7][7]AB 43-44. K said that the appellant performed multiple sexual acts on him, predominantly in the master bedroom but also in K’s room. This included rubbing his hands on K, and fondling his genitals. He said “that type of event, or very similar sequence of events, depending if [X] was in the house or out of the house … happened multiple times”.[8][8]AB 44 line 23.Count 6 – indecent treatment

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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