R v SBC - [2007] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBC [2007] QCA 283

PARTIES:

R
v
SBC

(appellant)

FILE NO/S:

CA No 106 of 2007
DC No 12 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

31 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2007

JUDGES:

McMurdo P, Mackenzie and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Allow the appeals on counts 1, 3 and 41.

Convictions set aside2.

On count 1, acquittal entered3.

On counts 3 and 4, new trial ordered4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where appellant charged with two counts of taking an indecent photograph of a child under 16 – where appellant admitted to taking a photograph different to that relied on by the Crown – where the jury was directed they were to decide if the admitted photograph was indecent – whether there was a real prospect that the conviction was based on an act different from the alleged act

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 charged with rape, alternatively of indecently dealing with a child under 12 – where jury convicted of indecently dealing – where appellant submitted at trial that he was mistaken as to identity – where trial judge directed jury as to mistake of fact – where trial judge made irrelevant references to issues of consent – whether the effect of the directions may have resulted in the jury being unable to exclude an honest and reasonable belief as to identity

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where appellant submitted the directions as to intoxication were erroneous and/or inadequate – whether intoxication is relevant to s 24 Criminal Code 1899 (Qld)

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 charged with maintaining an unlawful relationship of a sexual nature with a child under 16 – where the jury was directed they did not need to be satisfied that any specific acts had occurred – whether particularisation of the acts is a necessary component of s 229B

Criminal Code 1899 (Qld) s 23, s 24, s 28, s 210(1)(f), s 229B, s 352(1)(a), s 578(1)

R v Kusu [1981] Qd R 136, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
M…

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 SBC

Details

AGLC: R v SBC [2007] QCA 283
Case: [2007] QCA 283
Decision Date: 31 August 2007

CaseChat Overview and Summary

The appellant, in this case, was convicted on four counts related to serious sexual offences against children. The matter was heard in the Court of Appeal, where the appellant challenged the verdict on various grounds. The legal issues focused on whether the jury's verdict was unreasonable or insupportable, if there were misdirections or non-directions that affected the jury's decision, and if the trial judge's directions regarding intoxication were erroneous. The appeal raised concerns about the possibility that the jury's verdict was based on an act different from the one alleged and whether the jury was properly directed on issues of identity, consent, and the particularisation of acts.

The court found that there were significant issues with the trial judge's directions to the jury. In relation to the charge of taking an indecent photograph of a child under 16, the court held that there was a real prospect that the conviction was based on an act different from the one alleged. Additionally, regarding the charge of indecently dealing with a child under 12, the court found that the trial judge's references to issues of consent and mistake of fact may have impaired the jury's ability to properly consider the appellant's submission of mistaken identity. The court also found that the trial judge's directions on intoxication were erroneous and inadequate, which was relevant to the charge of maintaining an unlawful relationship of a sexual nature with a child under 16.

The Court of Appeal allowed the appeals on counts 1, 3, and 4, set aside the convictions, and acquitted the appellant on count 1. A new trial was ordered on counts 3 and 4. The court held that the errors in the trial judge's directions were substantial and had a significant effect on the safety of the appellant's convictions. The appeal was therefore allowed, and the convictions were set aside.

The orders of the court were to allow the appeals on counts 1, 3, and 4, set aside the convictions, enter an acquittal on count 1, and order a new trial on counts 3 and 4. This decision highlights the importance of proper jury directions in criminal trials, particularly when it comes to serious sexual offences against children.

Orders

Orders of the court

Allow the appeals on counts 1, 3 and 41.

Convictions set aside2.

On count 1, acquittal entered3.

On counts 3 and 4, new trial ordered4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SBC [2007] QCA 283
PARTIES:	R v SBC (appellant)
FILE NO/S:	CA No 106 of 2007 DC No 12 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	31 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2007
JUDGES:	McMurdo P, Mackenzie and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Allow the appeals on counts 1, 3 and 41. Convictions set aside2. On count 1, acquittal entered3. On counts 3 and 4, new trial ordered4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED – where appellant charged with two counts of taking an indecent photograph of a child under 16 – where appellant admitted to taking a photograph different to that relied on by the Crown – where the jury was directed they were to decide if the admitted photograph was indecent – whether there was a real prospect that the conviction was based on an act different from the alleged act 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 charged with rape, alternatively of indecently dealing with a child under 12 – where jury convicted of indecently dealing – where appellant submitted at trial that he was mistaken as to identity – where trial judge directed jury as to mistake of fact – where trial judge made irrelevant references to issues of consent – whether the effect of the directions may have resulted in the jury being unable to exclude an honest and reasonable belief as to identity CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where appellant submitted the directions as to intoxication were erroneous and/or inadequate – whether intoxication is relevant to s 24 Criminal Code 1899 (Qld) 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 charged with maintaining an unlawful relationship of a sexual nature with a child under 16 – where the jury was directed they did not need to be satisfied that any specific acts had occurred – whether particularisation of the acts is a necessary component of s 229B Criminal Code 1899 (Qld) s 23, s 24, s 28, s 210(1)(f), s 229B, s 352(1)(a), s 578(1) R v Kusu [1981] Qd R 136, cited
COUNSEL:	S J Hamlyn-Harris for the appellant M…