R v SBW - [2012] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBW [2012] QCA 191

PARTIES:

R
v
SBW
(appellant)

FILE NO/S:

CA No 71 of 2012
DC No 508 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2012

JUDGES:

Margaret McMurdo P and Muir and Gotterson 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 DIMISSED – where appellant convicted of one count of indecent dealing (count 1) – where appellant acquitted of exposing a child to an indecent object (count 2), rape (count 3) and indecent dealing (count 4) – where complainant was the appellant’s granddaughter – where the complainant made a pretext telephone call to the appellant in which she discussed counts 1 and 2 – where the appellant did not directly concede touching the complainant in a sexual area during the call – where it was open to the jury to find that there was an implied admission during the call – where appellant challenged the credibility and consistency of complainant’s evidence – where appellant submitted there was a lack of specificity in the complainant’s evidence – where appellant submitted that because the complainant’s evidence was rejected by the jury with respect to counts 2, 3 and 4 it should also be rejected with respect to count 1 in the absence of corroborating evidence – whether the conviction is unsafe, unsatisfactory, unreasonable and not supported by the evidence

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
R v CX [2006] QCA 409, considered
R v D[2000] QCA 417, considered

COUNSEL:

T E Mossop for the appellant
V A Loury for the respondent

SOLICITORS:

GD Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Muir JA’s reasons for dismissing this appeal against conviction.

MUIR JA: Introduction The appellant was convicted after a five day trial of one count of indecent dealing with his 12 year old granddaughter (count 1). He was acquitted of the other three counts on the indictment: exposing a child under 16 to an indecent object (count 2), rape (count 3) and indecent dealing with a child under 16 (count 4). All the offences were alleged to have been committed between 31 December 2006 and 1 January 2008.

The appellant appeals against his conviction on the grounds that the verdict is unsafe, unsatisfactory, unreasonable and not supported by the whole of the evidence.

The evidence

The complainant’s evidence consisted of statements to police given on 26 April 2011 and 4 May 2011 and her evidence pre-recorded on 19 March 2012.

In her statement of 26 April 2011, the complainant informed the interviewing police officer to the following effect. She…

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 SBW

Details

AGLC: R v SBW [2012] QCA 191
Case: [2012] QCA 191
Decision Date: 17 July 2012

CaseChat Overview and Summary

In this case, the appellant, SBW, was convicted of one count of indecent dealing but acquitted of three other charges, including exposing a child to an indecent object, rape, and another count of indecent dealing. The complainant in this case was the appellant’s granddaughter. The appellant appealed against his conviction on count 1, arguing that the verdict was unreasonable or not supported by the evidence, among other things. The appeal was dismissed.

The legal issues before the court were whether the conviction for count 1 was unsafe, unsatisfactory, unreasonable, and not supported by the evidence. The appellant argued that the complainant’s evidence was not credible, and that there was a lack of specificity in her evidence. The appellant also argued that because the jury rejected the complainant’s evidence in relation to counts 2, 3, and 4, it should also be rejected in relation to count 1 in the absence of corroborating evidence.

The court found that the jury had properly considered the evidence and was entitled to find that there was an implied admission during a pretext telephone call between the appellant and the complainant. The court noted that the jury was not required to accept the appellant’s version of events, and that it was open to the jury to find that the appellant had indecently dealt with the complainant. The court also noted that the evidence of the complainant was corroborated by other evidence, including the appellant’s own admissions. The court found that the conviction for count 1 was safe and satisfactory, and not unreasonable or unsupported by the evidence.

The appeal was dismissed. The conviction for count 1 of indecent dealing stood.

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 SBW [2012] QCA 191
PARTIES:	R v SBW (appellant)
FILE NO/S:	CA No 71 of 2012 DC No 508 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2012
JUDGES:	Margaret McMurdo P and Muir and Gotterson 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 DIMISSED – where appellant convicted of one count of indecent dealing (count 1) – where appellant acquitted of exposing a child to an indecent object (count 2), rape (count 3) and indecent dealing (count 4) – where complainant was the appellant’s granddaughter – where the complainant made a pretext telephone call to the appellant in which she discussed counts 1 and 2 – where the appellant did not directly concede touching the complainant in a sexual area during the call – where it was open to the jury to find that there was an implied admission during the call – where appellant challenged the credibility and consistency of complainant’s evidence – where appellant submitted there was a lack of specificity in the complainant’s evidence – where appellant submitted that because the complainant’s evidence was rejected by the jury with respect to counts 2, 3 and 4 it should also be rejected with respect to count 1 in the absence of corroborating evidence – whether the conviction is unsafe, unsatisfactory, unreasonable and not supported by the evidence MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered R v CX [2006] QCA 409, considered R v D[2000] QCA 417, considered
COUNSEL:	T E Mossop for the appellant V A Loury for the respondent
SOLICITORS:	GD Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent