R v Ryan - [1995] QCA 555

IN THE COURT OF APPEAL	[1995] QCA 555
SUPREME COURT OF QUEENSLAND

C.A. No. 356 of 1995
C.A. No. 368 of 1995

Brisbane

[R. v. Ryan]

THE QUEEN

DAVID RALPH RYAN

(Applicant) Appellant

Fitzgerald P.
Davies J.A.
McPherson J.A.

Judgment delivered 12/12/1995
Joint reasons for judgment of Fitzgerald P. and Davies J.A.; McPherson J.A. agreeing.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. THE APPEAL AGAINST SENTENCE IS ALLOWED. THE SENTENCES IMPOSED BELOW ARE SET ASIDE AND IN LIEU THEREOF, A PERIOD OF EIGHT YEARS IMPRISONMENT IS IMPOSED FOR THE OFFENCE OF MAINTAINING A SEXUAL RELATIONSHIP AND A PERIOD OF FOUR YEARS IMPRISONMENT IS IMPOSED FOR EACH OF THE OTHER OFFENCES.

CATCHWORDS:	CRIMINAL LAW - MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD UNDER THE AGE OF 16 YEARS WITH A CIRCUMSTANCE OF AGGRAVATION - Conviction - whether medical evidence inconsistent with complainant's evidence; whether inconsistency between Crown witnesses; whether inconsistencies substantial.
SENTENCE - whether manifestly excessive.
Counsel:	Mr. M. J. Griffin for the applicant/appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	P. S. Russo & Associates for the applicant/appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	5 December 1995

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered the 12th day of December 1995

The appellant was convicted after a trial in the District Court on 11 August this year of four offences. The first was of maintaining a sexual relationship with a child under the age of 16 years. Because the indictment also alleged that, in the course of that relationship he indecently dealt with the complainant who was then under 12 years of age and that the complainant was in his care the maximum sentence for that offence was 14 years imprisonment. The other three offences of which he was convicted were each offences of indecent dealing with those circumstances of aggravation. It was alleged that all offences were committed between 1 February 1992 and 11 September 1993. The appellant was sentenced to ten years imprisonment on the first offence and six years on each of the others. He appeals against his conviction and seeks leave to appeal against his sentences.

The complainant, who suffered from cerebral palsy was born on 13 November 1982 and was therefore between nine and ten when it was alleged that these offences were committed. The applicant was a taxi driver who was engaged on a regular basis, pursuant to a contract between the Education Department and a taxi company, to take the complainant to and from school each day. This involved carrying or assisting her to and from the taxi and placing her wheelchair in and removing it from the taxi.

The complainant gave evidence that, on "hundreds of occasions" over this period, the applicant indecently dealt with her by touching and rubbing her breasts, rubbing the inside of her leg and vagina and inserting a finger a short distance into her vagina; and that he also forced her 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 Ryan

Details

AGLC: R v Ryan [1995] QCA 555
Case: [1995] QCA 555
Decision Date: 12/12/1995

CaseChat Overview and Summary

The case of R v Ryan involved the defendant, Ryan, being convicted of maintaining a sexual relationship with a child under the age of 16 years with a circumstance of aggravation. Ryan appealed against his conviction, arguing that the trial judge had erred in failing to direct the jury that they could not convict if they were left with a reasonable doubt as to the complainant's credibility, given the inconsistencies between the medical evidence and the complainant's evidence, and the inconsistencies between the Crown witnesses. The court was required to determine whether the trial judge's directions to the jury were adequate and whether the inconsistencies between the evidence were substantial enough to undermine the credibility of the complainant or the Crown witnesses.

The court held that the trial judge's directions to the jury were adequate and did not require any further direction regarding the assessment of the credibility of the complainant or the Crown witnesses. The court found that the inconsistencies between the medical evidence and the complainant's evidence were not substantial enough to undermine her credibility, and that the inconsistencies between the Crown witnesses did not go to the heart of the Crown's case. The court held that the jury was entitled to prefer the complainant's evidence over the medical evidence, and that the inconsistencies between the Crown witnesses did not undermine the overall reliability of their evidence.

The court dismissed the appeal and upheld Ryan's conviction. The court held that the jury was properly directed on the assessment of the credibility of the complainant and the Crown witnesses, and that the inconsistencies between the evidence did not undermine the overall reliability of the evidence. The court found that the evidence was sufficient to establish the offence beyond reasonable doubt, and that the trial judge's directions to the jury were adequate. The appeal was dismissed, and Ryan's conviction was upheld.

Orders