R v RAQ

[2014] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v RAQ [2014] QCA 261

PARTIES:

R
v
RAQ
(appellant)

FILE NO/S:

CA No 148 of 2014
DC No 437 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Orders delivered ex tempore 2 October 2014
Reasons delivered 17 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2014

JUDGES:

Holmes and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 2 October 2014:

1.       Leave is granted to amend the Notice of Appeal.

2.       Appeal allowed.

3.       Conviction quashed.

4.       Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant and the child complainant were swimming – where it was alleged that while playing a game the appellant digitally penetrated the complainant – where the appellant was convicted of rape and sentenced to three years imprisonment to be suspended after 18 months with an operational period of three years – where at trial the evidence of the complainant and other child witnesses were pre-recorded – where the learned trial judge did not give directions strictly in accordance with the requirements of s 21AW(2) Evidence Act 1997 (Qld) – whether a miscarriage of justice has occurred

Criminal Code 1899 (Qld), s 668E(1A)
Evidence Act 1977 (Qld), s 21AK, s 21AW(2), s 93A

R v AAR[2014] QCA 20, cited
R v Doolan[2014] QCA 246, cited
R v Horvath[2013] QCA 196, cited

COUNSEL:

T A Ryan for the appellant
T A Fuller QC for the respondent

SOLICITORS:

Howden Saggers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  I agree with the reasons of Gotterson JA.

1. GOTTERSON JA: On 21 May 2014 and on the third day of his trial in the District Court at Southport, the appellant, RAQ, was convicted of an offence against s 349 of the Criminal Code 1899 (Qld) (“Code”).  The count on which he was convicted alleged that between 1 December 2009 and 26 January 2010 he raped the complainant, his step-daughter, PD, by digitally penetrating her vagina.

1. The appellant was sentenced that day to a term of imprisonment of three years to be suspended after serving 18 months with an operational period of three years.

1. On 6 June 2014, the appellant filed a Form 26 notice of appeal against his conviction on the single ground that the verdict was unsafe, unsatisfactory and unreasonable on the evidence.  At the hearing of the appeal on 2 October 2014, the appellant was granted leave to amend his Notice of Appeal by substituting two new grounds of appeal for the stated ground.

1. At the conclusion of the hearing, the Court made orders allowing the appeal, quashing the conviction and ordering a re-trial.  Delivery of reasons was…