R v SCD

Case [2013] QCA 352

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCD [2013] QCA 352

PARTIES:

R
v
SCD
(appellant/applicant)

FILE NO/S:

CA No 160 of 2013
DC No 216 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2013

JUDGES:

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

ORDERS:

1.   The guilty verdicts in respect of counts 1 and 4 be set aside.

2.   Verdicts of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of two counts of indecent treatment of a child under 12, under care (counts 1 and 4) and acquitted of two such counts (counts 2 and 3) and one count of rape (count 5) – where the appellant appeals against the guilty verdicts in respect of counts 1 and 4 on the basis that they are inconsistent with the acquittals on counts 2, 3 and 5 – where the appellant contends that the credibility of the complainant, whose evidence was uncorroborated, was irretrievably damaged by the not guilty verdicts on counts 2, 3 and 5 – where the appellant contends that the different verdicts represent an affront to logic and commonsense – where the respondent submits that the verdicts can be reconciled as the jury may not have been satisfied beyond reasonable doubt of the indecency of the conduct the subject of counts 2 and 3 and count 5 was a non‑traditional form of rape – where the trial judge commented that it seemed “a little extraordinary”, given the complainant’s computer record of the allegations, that the clinical psychologist was told so little – where there were inconsistencies between the complainant’s account of her discussions with the clinical psychologist and the clinical psychologist’s evidence of their conversations – where there were significant discrepancies in the complainant’s evidence, including her change of position on whether the appellant was wearing underwear during the count 5 incident – where there was nothing in the complainant’s evidence or the surrounding circumstances which rendered her evidence in relation to counts 1 and 4 more reliable – whether the verdicts can be reconciled

EVIDENCE – ADMISSIBILITY AND RELEVANCY – HEARSAY – STATEMENTS – SELF-SERVING – where the appellant participated in a video recorded interview with police and a pretext telephone conversation initiated by the complainant during which he denied all allegations made against him – where the trial judge refused to admit the record of interview and the pretext telephone conversation into evidence as they contained wholly exculpatory statements – where the appellant contends that the evidence did not offend the hearsay rule as it was not sought to be led to prove the truth of the appellant’s denials – where the appellant relies on a line of English authority in…

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AGLC
R v SCD [2013] QCA 352
Case
[2013] QCA 352
Decision Date

CaseChat Overview and Summary

In the matter of R v SCD, the appellant appealed against his convictions on counts 1 and 4 of indecent treatment of a child under 12, under care. The appellant was acquitted on counts 2, 3 and 5, which related to similar charges and a charge of rape. The appeal focused on the inconsistency of the verdicts, with the appellant arguing that the acquittals on counts 2, 3 and 5 irretrievably damaged the credibility of the complainant, whose evidence was uncorroborated. The respondent argued that the jury may not have been satisfied beyond reasonable doubt of the indecency of the conduct in counts 2 and 3, and that count 5 was a non-traditional form of rape.

The court examined whether the verdicts could be reconciled, considering the trial judge's comments on the complainant's credibility, inconsistencies between her account and the clinical psychologist's evidence, and significant discrepancies in her testimony. The court concluded that there was nothing in the complainant's evidence or surrounding circumstances which rendered her evidence in relation to counts 1 and 4 more reliable. The court found that the verdicts were irreconcilable and set aside the guilty verdicts in respect of counts 1 and 4.

The court also considered whether the trial judge's refusal to admit the record of interview and the pretext telephone conversation into evidence, which contained wholly exculpatory statements, gave rise to a miscarriage of justice. The appellant argued that the evidence did not offend the hearsay rule as it was not sought to be led to prove the truth of the appellant's denials, but rather as evidence of the reaction of the accused. The court held that the evidence was inadmissible under the principles set out in Callaghan and Kochnieff, which require that self-serving statements be contained within statements containing an admission on which the prosecution seeks to rely. The court found that the refusal to admit the evidence did not give rise to a miscarriage of justice.

The final orders were that the guilty verdicts in respect of counts 1 and 4 be set aside and verdicts of acquittal be entered.

Orders

Orders of the court

1. The guilty verdicts in respect of counts 1 and 4 be set aside.

2. Verdicts of acquittal be entered.

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

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