R v Scott

[2011] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scott [2011] QCA 97

PARTIES:

R
v
SCOTT, Justin Leigh
(appellant)

FILE NO/S:

CA No 258 of 2010
DC No 185 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2011

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal be allowed.

2.   The conviction be set aside.

3.   A verdict of acquittal be entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of maintaining a sexual relationship with a child – where the complainant gave evidence describing the appellant’s uncircumcised penis – where the appellant was circumcised – where the corroborating evidence of the complainant’s brother was unreliable – whether the verdict was unsafe or unsatisfactory having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the primary judge admitted into evidence a telephone conversation between the appellant and the complainant’s grandfather – where, during the telephone conversation, the appellant replied in the affirmative to allegations of wrongdoing – whether the primary judge erred in admitting such evidence

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Soma (2003) 212 CLR 299; [2003] HCA 13, cited
SKA v The Queen [2011] HCA 13, cited
The King v Grills (1910) 11 CLR 400; [1910] HCA 68, cited
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, cited

COUNSEL:

M J Byrne QC, with H Walters, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Arthur Browne & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MUIR JA:  Introduction

The appellant was convicted after a trial in the District Court of maintaining a sexual relationship with a child and sentenced to four years imprisonment.  He appeals against his conviction on grounds that:

(1)        the verdict was unreasonable;

(2)        the trial judge erred in admitting into evidence a telephone conversation alleged to have occurred between the complainant’s grandfather and the appellant;

(3)        the trial judge erred in directing the jury that the appellant’s response to what was said to him in the course of the telephone conversation was capable of being construed as a statement against interest.

[2]      Six witnesses, including the complainant, gave evidence in the prosecution case.

The complainant’s evidence

[3]      In her evidence-in-chief, the complainant, who was then nine years of age, affirmed as true the content of a DVD recording of an interview of her by a police officer on 11 September 2009.  She was reminded in evidence-in-chief that she had informed…