R v Rae - [2008] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rae [2008] QCA 385

PARTIES:

R
v
RAE, Alan Thomas
(appellant)

FILE NO/S:

CA No 58 of 2008
DC No 646 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2008

JUDGES:

Muir JA, Mackenzie AJA and Daubney J
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 –PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where appellant convicted of four counts of indecently dealing with a child and one count of exposing a child to an indecent picture – where, at trial, evidence adduced in respect of ten incidents not the subject of charges – where, in summing up, the trial judge referred to these incidents as ‘uncharged acts’ – where the summing up did not include an express direction that the standard of proof in respect of each of the incidents was ‘beyond reasonable doubt’ – whether the directions given by the trial judge were appropriate

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where appellant contended that it was open for the jury to find that, even if the contact alleged in the indecent dealing counts occurred, it was not unequivocally a sexual touching – where the appellant’s case at trial was that the touching had not occurred – whether the trial judge should have directed the jury that the acts had to be accompanied by an intention to gain sexual gratification
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where, at trial, the defence counsel did not ask the judge to direct the jury in respect of a defence of accident – whether the trial judge should nonetheless have given such a direction

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE –CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL –OTHER IRREGULARITIES – where appellant contends that the jury were not given sufficient particulars of three of the indecent dealing counts – where prosecutor’s opening gave details of these counts – whether counts of indecent dealing sufficiently particularised

Criminal Code Act 1899 (Qld), s 210(1)(a), s 210(1)(e)

HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, considered
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
R v BAS[2005] QCA 97, considered
Harkin v R (1989) 38 A Crim R 296, applied
R v R [1998] QCA 83, applied

COUNSEL:

P E Smith for the appellant
T A Fuller for the respondent

SOLICITORS:

Suthers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Daubney J and with the order he proposes.

MACKENZIE AJA:…

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 Rae

Details

AGLC: R v Rae [2008] QCA 385
Case: [2008] QCA 385
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appeal before the court was brought by an appellant who had been convicted of four counts of indecently dealing with a child and one count of exposing a child to an indecent picture. The appellant sought to overturn the conviction on the basis of alleged misdirections and non-directions by the trial judge, as well as an argument that there was a miscarriage of justice due to insufficient particulars given to the jury about some of the charges. The appeal was heard in the higher court of Australia.

The central legal issues for the court to consider were whether the trial judge's directions to the jury were appropriate, both in terms of the standard of proof required for uncharged acts and the necessity of an intention to gain sexual gratification for the indecent dealing charges. Additionally, the court had to determine whether the trial judge should have directed the jury on the defence of accident, despite the defence counsel not requesting such a direction. Finally, the court had to assess whether the jury had been given sufficient particulars of the indecent dealing counts to enable them to understand and properly consider the evidence.

In evaluating the appellant's arguments, the court found that the trial judge's directions to the jury were appropriate, despite the omission of an explicit direction that the standard of proof for uncharged acts was beyond reasonable doubt. The court concluded that the jury would have understood this requirement implicitly. Furthermore, the court held that there was no need for a direction on the intention to gain sexual gratification, as this was not an issue in the case. The court also determined that no direction on the defence of accident was necessary as the defence counsel did not request it. Finally, the court found that the particulars provided to the jury were sufficient for them to understand the charges.

As a result of these findings, the appeal was dismissed, and the conviction was upheld.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Rae [2008] QCA 385
PARTIES:	R v RAE, Alan Thomas (appellant)
FILE NO/S:	CA No 58 of 2008 DC No 646 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2008
JUDGES:	Muir JA, Mackenzie AJA and Daubney J 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 –PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where appellant convicted of four counts of indecently dealing with a child and one count of exposing a child to an indecent picture – where, at trial, evidence adduced in respect of ten incidents not the subject of charges – where, in summing up, the trial judge referred to these incidents as ‘uncharged acts’ – where the summing up did not include an express direction that the standard of proof in respect of each of the incidents was ‘beyond reasonable doubt’ – whether the directions given by the trial judge were appropriate CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where appellant contended that it was open for the jury to find that, even if the contact alleged in the indecent dealing counts occurred, it was not unequivocally a sexual touching – where the appellant’s case at trial was that the touching had not occurred – whether the trial judge should have directed the jury that the acts had to be accompanied by an intention to gain sexual gratification CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where, at trial, the defence counsel did not ask the judge to direct the jury in respect of a defence of accident – whether the trial judge should nonetheless have given such a direction APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE –CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL –OTHER IRREGULARITIES – where appellant contends that the jury were not given sufficient particulars of three of the indecent dealing counts – where prosecutor’s opening gave details of these counts – whether counts of indecent dealing sufficiently particularised Criminal Code Act 1899 (Qld), s 210(1)(a), s 210(1)(e) HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, considered Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited R v BAS[2005] QCA 97, considered Harkin v R (1989) 38 A Crim R 296, applied R v R [1998] QCA 83, applied
COUNSEL:	P E Smith for the appellant T A Fuller for the respondent
SOLICITORS:	Suthers Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent