R v SCS - [2017] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCS [2017] QCA 78

PARTIES:

R
v
SCS
(appellant)

FILE NO/S:

CA No 282 of 2016
DC No 10 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Roma – Date of Conviction: 14 September 2016

DELIVERED ON:

2 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2017

JUDGES:

Morrison and McMurdo JJA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was tried for three counts of indecent treatment of a child with the circumstances of aggravation that the complainant was her son, was aged under 12 years and was under her care – where the appellant was only convicted of the second of the three counts on the indictment – where the complainant was six years old at the time of the offending and his evidence was uncorroborated – where the complainant’s father was involved in litigation against the appellant concerning their children in the Family Court – where the complainant gave evidence that his father and his step-mother had asked him, for a number of nights prior to his pre-recorded evidence, whether he remembered what he had to say – where the complainant mentioned only one incident at the time of his first police interview yet by the time of the trial the complainant’s version was that similar conduct occurred each time he stayed at the appellant’s residence – where the evidence in his initial police interview was clear and largely internally consistent – where the lack of disclosure of the other offending could have been consistent with a shyness or wish to disclose only a single instance of offending which had already been disclosed to the complainant’s father and step-mother – whether the verdict of guilty on the second count was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried for three counts of indecent treatment of a child with the circumstances of aggravation that the complainant was her son, was aged under 12 years and was under her care – where the appellant was only convicted of the second of three counts on the indictment – where the complainant made a prompt preliminary complaint about the conduct the subject of the second count and maintained a largely consistent account of that offending throughout the trial – where the first count was affected by differences between the complainant and the father as to bruising which was alleged to have been present upon the complainant’s penis – where the prosecution case upon the third count was weaker than upon the second count because the conduct was alleged to have occurred on the same occasion as the second count but was not mentioned during the…

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.

Continue reading R v SCS

Details

AGLC: R v SCS [2017] QCA 78
Case: [2017] QCA 78
Decision Date: 2 May 2017

CaseChat Overview and Summary

In the case of R v SCS, the appellant was convicted of one count of indecent treatment of a child, with aggravating circumstances that the child was under 12 years of age and under the appellant's care. The appellant was acquitted on the other two counts related to the same incident. The complainant, who was six years old at the time of the offending, provided uncorroborated evidence, and the circumstances surrounding the preparation of his evidence raised questions about its reliability. The appellant challenged the conviction on grounds including the unreasonableness of the verdict, the inconsistency of the verdicts, and the adequacy of the jury directions regarding the uncorroborated evidence of a child.

The court was required to decide whether the verdict of guilty on the second count was unreasonable or insupportable given the evidence, whether the acquittal on the first and third counts rendered the overall verdict inconsistent, and whether the trial judge should have given a Robinson direction or a Markuleski direction to the jury regarding the uncorroborated evidence of the child. The court examined the nature of the inconsistencies in the evidence and the potential reasons for the jury's verdicts. The court also assessed the risk of miscarriage of justice and the appropriateness of the jury directions in light of the uncorroborated evidence.

The court found that the verdict of guilty on the second count was not unreasonable or insupportable given the evidence. The court determined that the acquittals on the first and third counts did not render the overall verdict inconsistent, as the jury might have taken a cautious approach to the less persuasive evidence. The court held that there was no perceptible risk of miscarriage of justice that required a Robinson direction, and that a Markuleski direction was not necessary or appropriate as the jury was free to accept parts of the complainant's evidence while rejecting others. The appeal was dismissed, and the conviction on the second count was upheld.

No further orders were made.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 SCS [2017] QCA 78
PARTIES:	R v SCS (appellant)
FILE NO/S:	CA No 282 of 2016 DC No 10 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Roma – Date of Conviction: 14 September 2016
DELIVERED ON:	2 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2017
JUDGES:	Morrison and McMurdo JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was tried for three counts of indecent treatment of a child with the circumstances of aggravation that the complainant was her son, was aged under 12 years and was under her care – where the appellant was only convicted of the second of the three counts on the indictment – where the complainant was six years old at the time of the offending and his evidence was uncorroborated – where the complainant’s father was involved in litigation against the appellant concerning their children in the Family Court – where the complainant gave evidence that his father and his step-mother had asked him, for a number of nights prior to his pre-recorded evidence, whether he remembered what he had to say – where the complainant mentioned only one incident at the time of his first police interview yet by the time of the trial the complainant’s version was that similar conduct occurred each time he stayed at the appellant’s residence – where the evidence in his initial police interview was clear and largely internally consistent – where the lack of disclosure of the other offending could have been consistent with a shyness or wish to disclose only a single instance of offending which had already been disclosed to the complainant’s father and step-mother – whether the verdict of guilty on the second count was unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried for three counts of indecent treatment of a child with the circumstances of aggravation that the complainant was her son, was aged under 12 years and was under her care – where the appellant was only convicted of the second of three counts on the indictment – where the complainant made a prompt preliminary complaint about the conduct the subject of the second count and maintained a largely consistent account of that offending throughout the trial – where the first count was affected by differences between the complainant and the father as to bruising which was alleged to have been present upon the complainant’s penis – where the prosecution case upon the third count was weaker than upon the second count because the conduct was alleged to have occurred on the same occasion as the second count but was not mentioned during the…