R v Ross - [2013] QCA 87

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2013] QCA 87

PARTIES:

R
v
ROSS, Robert Michael
(appellant)

FILE NO/S:

CA No 120 of 2012
DC No 347 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2013

JUDGES:

Muir, Fraser and White JJA
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 – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of six counts of indecent treatment of a child under 16 with the aggravating circumstance that the child was under 12; one count of attempted indecent treatment; and one count of rape – where the appellant contends that there were inconsistencies between the complainant’s account of the offending conduct and her mother’s recollection of the complainant’s account – where the appellant contends that there were inconsistencies between the complainant’s account and the account given by the complainant to others – where the appellant alleged that the evidence of the complainant’s mother was unreliable – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – where the prosecutor invited the jury to consider the complainant’s absence of motive to lie to support a finding that the offending took place – where the primary judge, in summarising the prosecutor’s closing address, referred to the absence of motive to lie – where counsel for the appellant asked that no redirection be given lest it tend to highlight the matter – where the primary judge gave a redirection – whether the primary judge properly directed the jury with respect to motive

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – OTHER CASES – where the complainant alleged that the appellant had asked if he could watch her urinate and whether she could urinate on him – where evidence of the complainant’s mother about requests by the appellant for her to urinate on him was held to be admissible on the basis that it satisfied the test in Pfennig v The Queen – where the appellant contends that the complainant may have overheard the appellant’s requests to her mother and used it to add colour to a false complaint – where the appellant contends that there was no strong similarity between what occurred between the complainant’s mother and the appellant and the complainant and the appellant – whether the primary judge erred in not excluding the evidence of the complainant’s mother

Evidence Act 1977 (Qld), s 132A

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16

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 Ross

Details

AGLC: R v Ross [2013] QCA 87
Case: [2013] QCA 87
Decision Date: 19 April 2013

CaseChat Overview and Summary

The appellant, Ross, was found guilty by a jury of six counts of indecent treatment of a child under 16, one count of attempted indecent treatment, and one count of rape, all with the aggravating circumstance that the child was under 12 years of age. The complainant, a child, alleged that the appellant had engaged in the offending conduct. The case came before the court on appeal, where the appellant challenged the verdict, contending that it was unreasonable or insupportable in light of the evidence presented.

The court was required to decide whether the verdict was unreasonable or insupportable having regard to the evidence, particularly the inconsistencies between the complainant's account and other accounts. The appellant also argued that there was an error in the presentation of the Crown case, specifically regarding the primary judge's redirection to the jury on the issue of the complainant's absence of motive to lie. Furthermore, the appellant contended that the evidence of the complainant's mother about requests by the appellant for her to urinate on him should not have been admitted, as it did not satisfy the test for propensity evidence.

The court found that the jury had properly considered the evidence and that the verdict was not unreasonable or insupportable. The court also found that the primary judge did not err in his redirection to the jury on the issue of the complainant's absence of motive to lie. Additionally, the court found that the evidence of the complainant's mother was properly admitted, as it satisfied the test for propensity evidence. Therefore, the appeal was dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ross [2013] QCA 87
PARTIES:	R v ROSS, Robert Michael (appellant)
FILE NO/S:	CA No 120 of 2012 DC No 347 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	19 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2013
JUDGES:	Muir, Fraser and White JJA 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 – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of six counts of indecent treatment of a child under 16 with the aggravating circumstance that the child was under 12; one count of attempted indecent treatment; and one count of rape – where the appellant contends that there were inconsistencies between the complainant’s account of the offending conduct and her mother’s recollection of the complainant’s account – where the appellant contends that there were inconsistencies between the complainant’s account and the account given by the complainant to others – where the appellant alleged that the evidence of the complainant’s mother was unreliable – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – where the prosecutor invited the jury to consider the complainant’s absence of motive to lie to support a finding that the offending took place – where the primary judge, in summarising the prosecutor’s closing address, referred to the absence of motive to lie – where counsel for the appellant asked that no redirection be given lest it tend to highlight the matter – where the primary judge gave a redirection – whether the primary judge properly directed the jury with respect to motive CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE – OTHER CASES – where the complainant alleged that the appellant had asked if he could watch her urinate and whether she could urinate on him – where evidence of the complainant’s mother about requests by the appellant for her to urinate on him was held to be admissible on the basis that it satisfied the test in Pfennig v The Queen – where the appellant contends that the complainant may have overheard the appellant’s requests to her mother and used it to add colour to a false complaint – where the appellant contends that there was no strong similarity between what occurred between the complainant’s mother and the appellant and the complainant and the appellant – whether the primary judge erred in not excluding the evidence of the complainant’s mother Evidence Act 1977 (Qld), s 132A BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16