R v RH

[2004] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:	R v RH [2004] QCA 225
PARTIES:	R v RH (appellant)
FILE NO/S:	CA No 67 of 2004 DC No 367 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	District Court at Ipswich
DELIVERED ON:	2 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 June 2004
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal and quash the convictions 2. Order a re-trial
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where appellant convicted of seven counts of indecent dealing with his two daughters who were under age of 12 – where evidence of preliminary complaints made by daughters to their mother and step-father was given – where learned trial judge did not direct jury as to the use to which they could put that evidence – whether direction should have been given – whether there was a likelihood that in absence of direction jury would treat that evidence as confirmatory of facts on which charges were based
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Jones v The Queen (1997) 71 ALJR 538, followed R v Lillyman [1896] 2 QB 167, cited
COUNSEL:	P J Callaghan for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes and with the further reasons for judgment of Jerrard JA.

2. WILLIAMS JA: The appellant was convicted on 20 February 2004 after a trial of seven counts of indecent dealing with his two daughters who were under the age of 12 at the time. He was sentenced to four years imprisonment with credit being given for 17 days spent in pre-sentence custody.

3. On 19 March 2004 he lodged a Notice of Appeal against conviction and an application for leave to appeal against sentence. At the outset of the hearing of the appeal his counsel abandoned the three grounds of appeal against conviction stated in that Notice and also abandoned the application for leave to appeal against sentence on the ground that it was manifestly excessive. The court struck out the application for leave to appeal against sentence, and granted leave to the appellant to add as a ground of appeal against conviction the following:

   “The learned trial judge erred when she failed to give any directions
   on the subject of preliminary complaint.”

4. Evidence in support of the charges was given by the appellant’s two daughters. Acceptance of that evidence would have been sufficient to support the verdicts of guilty.

5. Pursuant to s 4A of the Criminal Law (Sexual Offences) Act