R v Schneiders

[2007] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schneiders [2007] QCA 210

PARTIES:

R
v
SCHNEIDERS, Bernard Anthony
(appellant)

FILE NO/S:

CA No 70 of 2007
DC No 552 of 2006 

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bundaberg 

DELIVERED ON:

27 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2007

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed

2. Conviction set aside

3. New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE –MISDIRECTION AND NON-DIRECTION – where appellant convicted of indecent treatment – whether defence case properly put before jury – whether satisfactory direction given in relation to appellant's failure to give evidence – whether satisfactory direction given in relation to reliability of complainant's evidence – whether there was a need for a Robinson warning – whether direction in relation to "indecent" was adequate

Criminal Code1899 (Qld), s 620(1)

Azzopardi v The Queen (2001) 205 CLR 50, applied
R v DAH [2004] QCA 419; CA No 153 of 2004, 5 November 2004, applied
Robinson v The Queen (1999) 197 CLR 162, considered
 

COUNSEL:

A J Kimmins for the appellant
D L Meredith for the respondent

SOLICITORS:

Payne Butler Lang for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA:  The issues raised by the appellant on the hearing of the appeal against conviction are fully canvassed in the reasons for judgment of Keane JA which I have had the advantage of reading.  There is nothing I can usefully add to what is said therein.  In the circumstances the convictions should be quashed and a retrial ordered.

1. JERRARD JA:  I have read the judgment of Keane JA and agree with the reasons and orders that His Honour proposes.

1. KEANE JA:  On 14 March 2007 the appellant was convicted upon the verdict of a jury of four counts of indecent treatment of a child under 12 years of age.  He was sentenced to concurrent sentences for each offence of 12 months imprisonment, suspended after two months actual imprisonment, for an operative period of two years.

1. The appellant seeks to appeal against the convictions on three grounds, each of which relates to the directions given to the jury by the learned trial judge.  I will discuss these grounds of appeal in turn after first summarising the evidence at trial.

The case at trial

1. The indictment charged the appellant with acts of indecency with the complainant, a female child born on 16 March 1995, between 16 March 2002 and 16 March 2004.  In particular:

·     count 1 concerned an allegation that, when the complainant was seven or eight years old, the appellant touched her "on [her] privates", rubbing his hand over her front on the outside of her jeans from neck…