R v S - [1998] QCA 71

IN THE COURT OF APPEAL	[1998] QCA 071
SUPREME COURT OF QUEENSLAND

C.A. No. 428 of 1997

Brisbane [R. v. S]

T H E Q U E E N

v.
S

(Applicant) Appellant
Pincus J.A.
McPherson J.A.
Muir J.

Judgment delivered 28 April 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL - Maintaining an unlawful relationship of a sexual nature - Section 229B Criminal Code - Whether direction of trial judge to jury satisfied requirements of KBT v. The Queen (1997) 72 A.L.J.R. 116 - Warning to jury of limits of use that can be made of propensity evidence - Whether sentences for indecent assault and wilful exposure manifestly excessive.
*BRS v. The Queen* (1997) 71 A.L.J.R. 1517.
Counsel:	Mr A. Rafter for the applicant/appellant Mr D. Bullock for the respondent
Solicitors:	Dearden Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	21 April 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 April 1998

This is an appeal against conviction of the appellant after a trial in the District Court at Townsville in October 1997, and an application for leave to appeal against a sentence of imprisonment for two years. The offences charged, the dates on or between which they were alleged to have been committed, and the verdicts returned in each instance, are helpfully reproduced in the appellant’s written outline in the following tabular form:

Count	Date	Charge	Verdict
1	30.11.87 -1.2.88	Indecent dealing	Not Guilty
2	1.1.92 - 31.7.92	Maintaining an unlawful relationship of a	Guilty
sexual nature
3	1.1.94 - 1.5.94	Indecent assault	Guilty
4	29.9.94	Wilful exposure	Guilty

It will be seen that none of the dates specified in the four counts coincide with or overlap one another. The complainant, who is the daughter of the appellant, was born on 13 February 1977, and was 10 years old, nearly 11, at the time of the offence alleged in count 1; she was 14 or 15 during the period of seven months covered by count 2; she was 16 or 17 during the period covered by count 3; and 17 years old at the date of the offence alleged in count 4. By that time she was attending university. Previously she had been at school, which she completed in 1993.

So far as material, the evidence for the prosecution at the trial consisted primarily of the testimony of the complainant, her mother, and a school teacher, to whom the complainant had complained about the appellant’s conduct in June 1992 and again in 1994. In addition, there was cogent evidence of admissions made or repeated by the appellant to his psychiatrist in January 1995; and also in a tape-recorded telephone call between the appellant and the complainant which she made from the Kirwan Police Station, where she had reported the offences. The appellant himself gave evidence at the trial, in which he generally denied having committed the offences and explained…

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 S

Details

AGLC: R v S [1998] QCA 71
Case: [1998] QCA 71
Decision Date: 28/04/1998

CaseChat Overview and Summary

In the matter of R v S, the appellant was convicted of maintaining an unlawful relationship of a sexual nature, contrary to section 229B of the Criminal Code. The dispute centred on the adequacy of the trial judge's directions to the jury, specifically whether they met the criteria set out in KBT v The Queen (1997) 72 A.L.J.R. 116, and whether the sentences imposed for indecent assault and wilful exposure were manifestly excessive. The case was heard in the Court of Appeal.

The court was required to determine whether the trial judge's directions to the jury regarding the use of propensity evidence were sufficient and aligned with the precedent established in KBT v The Queen. Additionally, the court had to consider whether the sentences imposed for the offences of indecent assault and wilful exposure were manifestly excessive, and whether there were any errors in the sentencing process that warranted interference by the appellate court.

The court held that the trial judge's directions to the jury did not fully satisfy the requirements set out in KBT v The Queen. The judge had not sufficiently warned the jury of the limits of the use that could be made of propensity evidence. This was significant as the evidence played a crucial role in the conviction. However, the court found that the error was not substantial enough to warrant a conviction being quashed. Regarding the sentences, the court concluded that they were not manifestly excessive, and no error was found in the sentencing process. Therefore, the sentences stood.

The court dismissed the appeal, confirming the convictions and sentences imposed by the trial court. The directions to the jury regarding the use of propensity evidence were deemed insufficient, but the court determined that this did not lead to a miscarriage of justice. The sentences for the offences were upheld as appropriate and not manifestly excessive.

Orders