R v SCB - [2013] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCB [2013] QCA 276

PARTIES:

R
v
SCB
(appellant/applicant)

FILE NO/S:

CA No 34 of 2013
CC No 67 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Childrens Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 9 September 2013
Further order and reasons delivered on 27 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2013

JUDGES:

Holmes and Muir JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 9 September 2013:

1. The appeal is allowed.

2. The convictions are set aside.

Delivered on 27 September 2013:

Verdicts of acquittal are entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant, a juvenile, was convicted of one count of indecent treatment, two counts of digital rape and two counts of attempted rape (as alternatives to rape) of an eight year old boy – where the appellant was also convicted of attempted rape (as an alternative to rape) of a five year old boy – where the eight year old complainant heard the initial complaint of digital penetration before making his own allegation – where that complainant was asked leading questions in a police interview – where that complainant’s version of events had advanced and altered between when he was interviewed by police, and when he gave his pre-recorded evidence the following year – where there were inconsistencies between both complainants’ evidence and the evidence given by their adult relations – where neither complainant gave any detail of the alleged penile penetration, no adult observed any evidence of their physical discomfort and where the Crown called no medical evidence – where the quality of the evidence on the counts involving digital penetration (on which the appellant was convicted of rape) did not differ from those involving penile penetration (on which he was convicted of attempted rape) – where there was no further evidence to support convictions of attempt – whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of support persons as required by s 21AW(2) of the Evidence Act when the child complainants gave pre-recorded evidence – whether a substantial miscarriage of justice occurred

Evidence Act 1977 (Qld), s 21AW(2)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v BCL[2013] QCA 108, cited
R v Bisht[2013] QCA 238, cited
R v Drake[2013] QCA 222, cited
R v Little[2013] QCA 223, cited

R v Michael (2008)…

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 SCB

Details

AGLC: R v SCB [2013] QCA 276
Case: [2013] QCA 276
Decision Date: 27 September 2013

CaseChat Overview and Summary

The appellant, a juvenile, was convicted of various sexual offences against two young boys and appealed against the convictions and sentences. The appeal was heard in the Court of Criminal Appeal. The appellant was convicted of one count of indecent treatment, two counts of digital rape and two counts of attempted rape (as alternatives to rape) of an eight year old boy and one count of attempted rape (as an alternative to rape) of a five year old boy. The appellant sought to overturn the convictions on the basis that the evidence was insufficient to satisfy the jury beyond reasonable doubt, and that there was a misdirection or non-direction of the jury by the trial judge.

The court found that there were significant inconsistencies in the evidence given by the complainants and their adult relations, and that the quality of the evidence did not differ between the counts involving digital penetration and those involving penile penetration. The court also found that the Crown called no medical evidence to support the convictions of attempt, and that the complainants gave no detail of the alleged penile penetration and no adult observed any evidence of their physical discomfort. The court concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the whole of the evidence. The court also found that the trial judge failed to direct the jury in respect of the presence of support persons when the child complainants gave pre-recorded evidence, which amounted to a misdirection or non-direction of the jury. The court found that this error resulted in a substantial miscarriage of justice.

The appeal was allowed and the convictions were set aside. Verdicts of acquittal were entered. The court ordered that the appeal be allowed, the convictions be set aside, and verdicts of acquittal be entered.

Orders

Orders of the court

Delivered ex tempore on 9 September 2013:

1. The appeal is allowed.

2. The convictions are set aside.

Delivered on 27 September 2013:

Verdicts of acquittal are entered.

Background

Background to the litigation

Full text does not contain this section.

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 SCB [2013] QCA 276
PARTIES:	R v SCB (appellant/applicant)
FILE NO/S:	CA No 34 of 2013 CC No 67 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Childrens Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore on 9 September 2013 Further order and reasons delivered on 27 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2013
JUDGES:	Holmes and Muir JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 9 September 2013: 1. The appeal is allowed. 2. The convictions are set aside. Delivered on 27 September 2013: Verdicts of acquittal are entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant, a juvenile, was convicted of one count of indecent treatment, two counts of digital rape and two counts of attempted rape (as alternatives to rape) of an eight year old boy – where the appellant was also convicted of attempted rape (as an alternative to rape) of a five year old boy – where the eight year old complainant heard the initial complaint of digital penetration before making his own allegation – where that complainant was asked leading questions in a police interview – where that complainant’s version of events had advanced and altered between when he was interviewed by police, and when he gave his pre-recorded evidence the following year – where there were inconsistencies between both complainants’ evidence and the evidence given by their adult relations – where neither complainant gave any detail of the alleged penile penetration, no adult observed any evidence of their physical discomfort and where the Crown called no medical evidence – where the quality of the evidence on the counts involving digital penetration (on which the appellant was convicted of rape) did not differ from those involving penile penetration (on which he was convicted of attempted rape) – where there was no further evidence to support convictions of attempt – whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of support persons as required by s 21AW(2) of the Evidence Act when the child complainants gave pre-recorded evidence – whether a substantial miscarriage of justice occurred Evidence Act 1977 (Qld), s 21AW(2) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v BCL[2013] QCA 108, cited R v Bisht[2013] QCA 238, cited R v Drake[2013] QCA 222, cited R v Little[2013] QCA 223, cited R v Michael (2008)…