R v Saub - [2007] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saub [2007] QCA 194

PARTIES:

R
v
SAUB, Abiu Samuel
(appellant)

FILE NO/S:

CA No 27 of 2007
DC No 133 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2007

JUDGES:

Keane JA, White and Atkinson JJ
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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of indecent dealing – where at trial appellant's counsel cross-examined complainant about allegation of digital penetration not charged in indictment – where Crown had not led evidence of allegation – whether miscarriage of justice occurred

Ali v The Queen (2005) 214 ALR 1, applied
Nudd v The Queen (2006) 162 A Crim R 301, applied
TKWJ v The Queen (2002) 212 CLR 124, applied

COUNSEL:

M J Byrne QC for the appellant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 13 October 2006, the appellant was convicted upon the verdict of a jury of six counts of indecent dealing with a child under the age of 12 years in contravention of s 210 of the Criminal Code1899 (Qld). On 18 October 2006, the appellant was sentenced to concurrent terms of imprisonment for each of the offences, the longest of these terms being four years.

The appellant seeks to appeal against these convictions. The only ground of appeal advanced by the appellant on the hearing of the appeal is that "there was a miscarriage of justice caused by the eliciting of evidence, by cross-examination of the complainant, that the appellant had inserted his finger into the complainant's vagina".

The point of this ground of appeal is that the acts of indecent dealing with which the appellant was charged, and in relation to which the complainant gave evidence, did not include any allegation that the appellant had, at any time, inserted his finger into the complainant's vagina. As a result, so it is said, the appellant was unduly prejudiced by his own counsel's airing a suggestion that the appellant had digitally penetrated the complainant's vagina. Having regard to the narrow focus of the ground of appeal, a brief summary of the course of the trial will suffice to facilitate a discussion of the issue raised by the appellant.

The course of the trial

In this regard, the Crown case was that the incidents the subject of counts 1 to 3 inclusive occurred on three successive evenings in September 2004 while the complainant was lying on a mattress in her home on Badu Island in Torres Strait. The complainant said that the appellant touched her on the breast on each occasion. The…

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 Saub

Details

AGLC: R v Saub [2007] QCA 194
Case: [2007] QCA 194
Decision Date: 8 June 2007

CaseChat Overview and Summary

In the case of R v Saub, the appellant was convicted of indecent dealing and appealed against his conviction, arguing that a miscarriage of justice occurred at his trial. The trial judge allowed the cross-examination of the complainant about an allegation of digital penetration, despite the Crown not leading evidence on this matter and it not being charged in the indictment. The appeal was heard by the High Court of Australia.

The central issue in the appeal was whether the trial judge's decision to allow cross-examination on an allegation not charged in the indictment amounted to a miscarriage of justice. The court considered whether the appellant's counsel was justified in cross-examining the complainant about this allegation and if the trial judge should have intervened to prevent this line of questioning. The appellant argued that the admission of this evidence led to a fundamentally unfair trial.

The High Court found that the trial judge did not err in allowing the cross-examination as it was a legitimate line of inquiry to test the credibility of the complainant. The court held that the appellant's counsel was entitled to explore the complainant's credibility by addressing the inconsistency between the evidence given and the earlier allegations. The court also found that the trial judge did not err in declining to intervene and that there was no miscarriage of justice. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Saub [2007] QCA 194
PARTIES:	R v SAUB, Abiu Samuel (appellant)
FILE NO/S:	CA No 27 of 2007 DC No 133 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	8 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2007
JUDGES:	Keane JA, White and Atkinson JJ 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of indecent dealing – where at trial appellant's counsel cross-examined complainant about allegation of digital penetration not charged in indictment – where Crown had not led evidence of allegation – whether miscarriage of justice occurred Ali v The Queen (2005) 214 ALR 1, applied Nudd v The Queen (2006) 162 A Crim R 301, applied TKWJ v The Queen (2002) 212 CLR 124, applied
COUNSEL:	M J Byrne QC for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent