R v SCL; R v SCL; Ex parte - [2016] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCL; R v SCL; Ex parte Attorney-General (Qld) [2016] QCA 107

PARTIES:

In Appeal No 149 of 2015:

R
v
SCL
(appellant)

In Appeal No 167 of 2015:

R
v
SCL
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 149 of 2015
CA No 167 of 2015
DC No 9 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Warwick – Date of Conviction & Sentence: 2 July 2015

DELIVERED ON:

26 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2016

JUDGES:

Gotterson and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal against conviction.

2.   Quash the conviction.

3.   Order that the appellant be retried.

4.   Dismiss the appeal against sentence by the Attorney-General.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of rape of a seven year old girl – where, at the time of the alleged rape, the appellant was in a relationship with the complainant’s mother – where, in his police interview, the appellant claimed that he had punched a man, P, because the complainant’s mother had told him P had touched the complainant – where the appellant also stated that the complainant’s mother had told him that, when he began his relationship with her, she was involved in court proceedings in relation to another man, W, who had also touched the complainant – where the appellant, when asked by police, denied that he had ever been alone with the complainant’s mother’s children nor slept in the same bed as the complainant – where, at trial, the complainant’s mother gave evidence that she had once found the appellant asleep in the complainant’s bed in the bedroom that she shared with her sister, S – where she also gave evidence that there had never been contact between the complainant and W and that there had been no touching of the complainant by P – where the prosecution adduced police evidence that no complaint had been made against W and P – where the prosecution alleged the inconsistencies between the appellant’s evidence and the evidence of the complainant’s mother and police records were suggestive of three lies told by the appellant indicative of his consciousness of guilt – where, in summing up, the learned trial judge identified four lies and directed the jury that they must be satisfied that an alleged lie revealed a knowledge of the offence in order to be probative of guilt, but suggested a line of reasoning not specifically explained by the prosecutor – where, after objection from defence counsel, the learned trial judge redirected the jury as to the third lie – where the appellant contends the trial…

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.

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Details

Case: [2016] QCA 107
Decision Date: 26 April 2016

CaseChat Overview and Summary

In the case of R v SCL; R v SCL; Ex parte, the appellant, SCL, appealed against his conviction for one count of rape of a seven-year-old girl. The appeal also addressed the issue of the sentence and whether it was manifestly inadequate. The case was heard in a court of appeal in Australia.

The court had to decide whether the appellant's conviction was a miscarriage of justice due to alleged misdirections and deficiencies in the trial judge's summing up, specifically concerning the identification of lies told by the appellant. The court also had to consider whether the evidence presented at trial was sufficient to support the conviction or if it rendered the verdict unreasonable or insupportable. Lastly, the court examined whether the sentence imposed was manifestly inadequate.

The court found that the trial judge had erred in his summing up by suggesting a line of reasoning not specifically explained by the prosecutor. The court also found that the direction regarding the lies was deficient, and that these errors caused a miscarriage of justice. Furthermore, the court held that the evidence presented at trial was insufficient to support the conviction, and the verdict was unreasonable or insupportable on the evidence. However, the court dismissed the appeal against the sentence, finding it was not manifestly inadequate.

The orders of the court were to allow the appeal against conviction, quash the conviction, order that the appellant be retried, and dismiss the appeal against sentence by the Attorney-General.

Orders

Orders of the court

1. Allow the appeal against conviction.

2. Quash the conviction.

3. Order that the appellant be retried.

4. Dismiss the appeal against sentence by the Attorney-General.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant’s police interview was tendered without objection. But in the appellant’s outline of argument in this court, it was submitted that the recording of that interview was entirely self‑serving, consequently inadmissible and should not have been admitted. That submission was later withdrawn. An argument which was pressed for the appellant was that some of the statements within it, and in particular the references to W and P, ought not to have been admitted having regard to s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld), which relevantly provides as follows:“4 Special rules limiting particular evidence about sexual offencesThe following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant—…2Without leave of the court—…(b) evidence shall not be received as to the sexual activities of the complainant with any person.3The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.4Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.…6An application for leave under rule 2 shall be made in the absence of the jury (if any) and, if the defendant so requests, in the absence of the complainant and shall be determined after the court has allowed such submissions or evidence (sworn or unsworn) as the court considers necessary for the determination of the application.” The appellant’s submission was that the admission of this evidence required the leave of the court because it was evidence within r 2(b), namely evidence “as to the sexual activities of the complainant with any person”. It was submitted that this is a wider category of evidence than evidence which would tend to establish the fact that there was such a sexual activity and the difference between the two was apparent from r 4. For present purposes, that submission may be accepted. But because there was no objection by the appellant’s counsel, it could not be said that there was an error of law by the trial judge in admitting the evidence. The procedure in r 6 was not followed, in that there was no specific application for leave under r 2. But the court must be taken to have given leave by admitting the evidence. Ultimately the argument for the appellant in this respect was that there was a miscarriage of justice by the admission of this evidence, in that it facilitated the prosecution argument that there were lies about W and P which could be used to corroborate the complainant’s evidence. But if that evidence was relevant in that it could support such an argument, there was no injustice to the appellant from its admission. To put the matter another way, if the evidence was admissible on that basis it would have had a “substantial relevance to the facts in issue” and there would have been no good reason to exclude it. Ultimately therefore, the argument based upon r 2(b) of s 4 is inconsequential.The prosecution case about lies

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SCL; R v SCL; Ex parte Attorney-General (Qld) [2016] QCA 107
PARTIES:	In Appeal No 149 of 2015: R v SCL (appellant) In Appeal No 167 of 2015: R v SCL (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 149 of 2015 CA No 167 of 2015 DC No 9 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Warwick – Date of Conviction & Sentence: 2 July 2015
DELIVERED ON:	26 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2016
JUDGES:	Gotterson and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal against conviction. 2. Quash the conviction. 3. Order that the appellant be retried. 4. Dismiss the appeal against sentence by the Attorney-General.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted by a jury of one count of rape of a seven year old girl – where, at the time of the alleged rape, the appellant was in a relationship with the complainant’s mother – where, in his police interview, the appellant claimed that he had punched a man, P, because the complainant’s mother had told him P had touched the complainant – where the appellant also stated that the complainant’s mother had told him that, when he began his relationship with her, she was involved in court proceedings in relation to another man, W, who had also touched the complainant – where the appellant, when asked by police, denied that he had ever been alone with the complainant’s mother’s children nor slept in the same bed as the complainant – where, at trial, the complainant’s mother gave evidence that she had once found the appellant asleep in the complainant’s bed in the bedroom that she shared with her sister, S – where she also gave evidence that there had never been contact between the complainant and W and that there had been no touching of the complainant by P – where the prosecution adduced police evidence that no complaint had been made against W and P – where the prosecution alleged the inconsistencies between the appellant’s evidence and the evidence of the complainant’s mother and police records were suggestive of three lies told by the appellant indicative of his consciousness of guilt – where, in summing up, the learned trial judge identified four lies and directed the jury that they must be satisfied that an alleged lie revealed a knowledge of the offence in order to be probative of guilt, but suggested a line of reasoning not specifically explained by the prosecutor – where, after objection from defence counsel, the learned trial judge redirected the jury as to the third lie – where the appellant contends the trial…