R v SCQ

Case [2017] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCQ [2017] QCA 49

PARTIES:

R
v
SCQ
(appellant/applicant)

FILE NO/S:

CA No 151 of 2016
DC No 2093 of 2015
DC No 221 of 2016
DC No 219 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 8 May 2016

DELIVERED ON:

28 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2017

JUDGES:

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

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of maintaining a sexual relationship with a child and one count of rape – where the appellant contended that there was a lack of procedural fairness due to errors by defence counsel and a lack of medical evidence at trial – where the appellant contended that the evidence given by the complainant and other witnesses was inconsistent and contradictory – where the defence counsel highlighted multiple inconsistencies in the evidence during closing addresses – where the prosecutor’s case was that even if there were inconsistencies and improbabilities in the evidence, a guilty verdict was still open to the jury – where, contrary to the appellant’s submissions, the trial judge emphasised the need to scrutinise the complainant’s evidence in the form of a Longman warning during summing up – whether it was open to the jury to conclude that the complainant was credible and reliable – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the appellant was convicted of one count of maintaining a sexual relationship with a child and one count of rape – where the appellant alleged that the trial judge erred in ruling that there was a case to answer on the rape count – where the appellant alternatively alleged that the trial judge should have quashed the rape count – where no submissions were made by the appellant, but defence counsel at trial submitted that the requirements for particularity were not met – where the trial judge concluded that a number of factors showed that there was a particular case to answer – whether the trial judge erred in deciding not to quash the rape count concluding that there was a case to answer

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced for the two counts that are subject to appeal and 14 other charges of indecent treatment of children – where the applicant plead guilty to the 14 other charges…

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Details
AGLC
R v SCQ [2017] QCA 49
Case
[2017] QCA 49
Decision Date

CaseChat Overview and Summary

The appellant was convicted of one count of maintaining a sexual relationship with a child and one count of rape. The appellant appealed against his conviction and sentence. The appeal against the conviction centred on the sufficiency and credibility of the evidence, the conduct of the trial judge, and the adequacy of legal representation. The appeal against the sentence focused on whether it was manifestly excessive.

The key legal issues were whether the jury was entitled to find the appellant guilty beyond reasonable doubt, considering the alleged inconsistencies and lack of medical evidence. Additionally, the court had to determine if the trial judge erred in ruling that there was a case to answer on the rape count and whether the sentence was manifestly excessive.

The court found that the jury was entitled to conclude that the complainant's evidence was credible and reliable, despite the appellant's claims of inconsistency. The trial judge had appropriately cautioned the jury on the need to scrutinise the complainant's evidence. The court also found that the trial judge did not err in concluding that there was a case to answer on the rape count, and that the sentence was not manifestly excessive. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

The court's final orders were that the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Recently the High Court has restated the pre-eminence of the jury.[10][10]R v Baden-Clay [2016] HCA 35, at [65] – [66].The complainant’s evidence L gave evidence in the form of a statement during a police interview, admitted under s 93A of the Evidence Act 1977 (Qld).She also gave oral evidence, pre-recorded under s 21AK of the Evidence Act. At the time of her police interview she was about 13 years and nine months old. At the time of giving her oral evidence she was about 15 years old. In her police interview she gave the following account:(a)she and her family were living at SCQ’s house for some time;(b)she used to sleep in the lounge room and could recall occasions when SCQ would touch her in a sexual way;(c)she recalled one occasion when she woke up to find SCQ on top of her, and his penis inside her vagina; he put his hand over her mouth so that she could not cry out and moved his penis in and out of her vagina; she tried to push him off, but he was too heavy; she “freaked out completely” and was scared; SCQ told her to be quiet, that it was okay and “everything’s gonna be alright”;(d)in respect of that occasion, L thought she was in Grade 5 or 6 and therefore aged about nine or 10;(e)L was able to describe some details concerning that occasion; she said his penis was “like a bar”, “hard, like really hard”, and described it as “weird looking, red, a pinky red colour … knobby looking”; she said that when he finished and walked away, his penis was still erect;(f)when SCQ got up to leave he told her to be quiet, “just be quiet about this”; she lay there in shock; she was not game enough to tell anyone because “I didn’t know what would happen because we might not, we might have gotten kicked out … and not have a place to live”;(g)afterwards she was sore, able to walk but in pain, and her vagina hurt when she walked;(h)on that occasion, as with others, it was night time and everyone else in the house was sleep;(i)on other occasions he “started making me touch his penis”;(j)on occasions when they were in the pool, he would touch her bottom and her breasts;(k)his conduct towards her “happened weeks on end”, and each time was “pretty much all the same, just sleeping, waking up, him on top of me, and then he just leaves”;(l)the conduct described as happening in the lounge room occurred six or seven times, eventually stopping when she threatened to tell her mother; when she did so, SCQ offered to give her money;(m)on one occasion when he assaulted her, his underwear was beside the bed, and he put it on before he left; she was able to describe the underwear as being like bike pants, grey in colour with a black stripe across the top;(n)the assaults continued for about a year;(o)the first occasion was, she thought, on a weekend or Friday because she did not have to go to school the next day; and(p)she told her mother some weeks or a month before the interview; that was prompted because two other girls, who had similar experiences with SCQ, told their parents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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