R v Popoff (a pseudonym) - [2020] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

R v Popoff (a pseudonym) [2020] QCA 167

PARTIES:

R
v
POPOFF (a pseudonym)
(appellant)

FILE NO/S:

CA No 256 of 2019
DC No 1555 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 4 September 2019 (Richards DCJ)

DELIVERED ON:

13 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2020

JUDGES:

Sofronoff P and Mullins JA and Bradley J

ORDER:

Dismiss the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – where the appellant was found guilty by a jury of three counts of rape and three counts of indecent treatment of a child under 12, the complainant being his younger sister – where the appellant did not give evidence at trial or call any witnesses – where the prosecution case depended entirely upon the complainant’s evidence and her evidence was uncorroborated – where the appellant submits his counsel’s conduct of the case was so inept that it has led to a miscarriage of justice – where the appellant submits that his counsel failed to advise him as to giving and calling evidence and the importance of a sworn denial, that counsel failed to properly take a version of events from the appellant, that counsel failed to properly advise as to calling the appellant and complainant’s mother as a witness, and that counsel failed to take proper instructions with respect to the change in the prosecution case as to the location of the offending – where the appellant does not make any submissions to explain how the trial may have been affected by the grounds contended by the appellant – where the respondent submits that no miscarriage attended the trial – whether the appellant’s trial was affected by a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by a jury of three counts of rape and three counts of indecent treatment of a child under 12, being his nine year old younger sister – where the appellant did not give evidence at trial or call any witnesses – where the prosecution case depended entirely upon the complainant’s evidence and her evidence was uncorroborated – where the complainant gave evidence through a recorded statement to police – where the complainant was cross-examined by defence counsel – where there was some inconsistency between the cross-examination and the police statement as to the location of the offending – where, during cross-examination, it was put to the complainant that she had a motive to lie, being that she was living in a physically and verbally abusive household and that she wanted to get out of a beastly household – where the appellant submits that the trial miscarried on the basis that the verdicts were unreasonable or cannot be supported having regard to…

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 Popoff (a pseudonym)

Details

AGLC: R v Popoff (a pseudonym) [2020] QCA 167
Case: [2020] QCA 167
Decision Date: 13 August 2020

CaseChat Overview and Summary

In the case of R v Popoff, the appellant, a pseudonym for the defendant, was convicted by a jury of three counts of rape and three counts of indecent treatment of a child under 12, specifically his younger sister. The prosecution's case was founded solely on the complainant's uncorroborated testimony, which was presented through a recorded statement to police, and subjected to cross-examination by the defence. The appellant did not testify or call any witnesses during the trial. The appellant has appealed against his conviction, arguing that the trial was affected by a miscarriage of justice due to his counsel's alleged ineptitude.

The primary legal issues the court had to decide were whether the appellant's counsel's conduct during the trial amounted to such a miscarriage of justice that it necessitated a new trial, and whether the jury's verdicts were unreasonable or insupportable considering the evidence presented. The appellant argued that his counsel failed to provide adequate advice on various aspects, including the importance of giving evidence and calling witnesses, and did not properly instruct him on the prosecution's change in the location of the alleged offences. The respondent argued that there was no miscarriage of justice in the trial.

The court assessed the appellant's claims and found that, despite the alleged failings of counsel, the trial had not been affected by a miscarriage of justice. The court concluded that the jury's verdicts were open to them based on the evidence, and that the jury had considered the inconsistencies in the complainant's evidence and the motive to lie, which was put to her during cross-examination. The court determined that the jury's verdicts were not unreasonable or insupportable. Therefore, the appeal was dismissed.

Orders

Orders of the court

Dismiss the appeal.

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 Popoff (a pseudonym) [2020] QCA 167
PARTIES:	R v POPOFF (a pseudonym) (appellant)
FILE NO/S:	CA No 256 of 2019 DC No 1555 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 4 September 2019 (Richards DCJ)
DELIVERED ON:	13 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2020
JUDGES:	Sofronoff P and Mullins JA and Bradley J
ORDER:	Dismiss the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – where the appellant was found guilty by a jury of three counts of rape and three counts of indecent treatment of a child under 12, the complainant being his younger sister – where the appellant did not give evidence at trial or call any witnesses – where the prosecution case depended entirely upon the complainant’s evidence and her evidence was uncorroborated – where the appellant submits his counsel’s conduct of the case was so inept that it has led to a miscarriage of justice – where the appellant submits that his counsel failed to advise him as to giving and calling evidence and the importance of a sworn denial, that counsel failed to properly take a version of events from the appellant, that counsel failed to properly advise as to calling the appellant and complainant’s mother as a witness, and that counsel failed to take proper instructions with respect to the change in the prosecution case as to the location of the offending – where the appellant does not make any submissions to explain how the trial may have been affected by the grounds contended by the appellant – where the respondent submits that no miscarriage attended the trial – whether the appellant’s trial was affected by a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by a jury of three counts of rape and three counts of indecent treatment of a child under 12, being his nine year old younger sister – where the appellant did not give evidence at trial or call any witnesses – where the prosecution case depended entirely upon the complainant’s evidence and her evidence was uncorroborated – where the complainant gave evidence through a recorded statement to police – where the complainant was cross-examined by defence counsel – where there was some inconsistency between the cross-examination and the police statement as to the location of the offending – where, during cross-examination, it was put to the complainant that she had a motive to lie, being that she was living in a physically and verbally abusive household and that she wanted to get out of a beastly household – where the appellant submits that the trial miscarried on the basis that the verdicts were unreasonable or cannot be supported having regard to…