R v Solway; ex parte A-G (Qld) - [1995] QCA 374

IN THE COURT OF APPEAL	[1995] QCA 374
SUPREME COURT OF QUEENSLAND
Brisbane [A-G v. Solway]

C.A. No. 164 of 1995.

T H E Q U E E N

ROBERT JOHN SOLWAY

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

C.A. No. 187 of 1995.

T H E Q U E E N

ROBERT JOHN SOLWAY

Appellant

___________________________________________________________________

Fitzgerald P.
Pincus J.A.
Demack J.

___________________________________________________________________

Judgment delivered 22/08/1995

Separate concurring reasons of each member of the Court.
___________________________________________________________________

APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST CONVICTION REFUSED. ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE DISMISSED.

___________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - conviction - indecent dealings with a girl under 14 years and under 16 years - whether unsafe and unsatisfactory.
CRIMINAL LAW - sentence - denial of guilt, lack of remorse - whether sufficient to warrant interference of court - sentence lenient - danger that present sentence may wrongly be treated as a benchmark.
Kuhl (Court of Appeal, C.A. No. 369/1992, 5 February 1993,
unreported)
Gardner (Court of Appeal, C.A. No. 10/1994, 12 April 1994,
unreported)
Grey (Court of Appeal, C.A. No. 447/1994, 15 May 1995, unreported) Melano (Court of Appeal, C.A. No. 393/1994, 1 December 1994,
unreported)
Dales (Court of Appeal, C.A. No. 32/1995, 4 August 1995,
unreported)
Counsel:	Mr A Rafter for the applicant/respondent. Mr D Bullock for the respondent to the application and for the appellant in the appeal.
Solicitors:	Carew & Company for the applicant/respondent. Director of Prosecutions for the respondent to the application and for the appellant in the appeal.
Hearing date:	21 June 1995.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 22/08/1995

The circumstances giving rise to Solway’s appeal against conviction and the Attorney- General’s appeal against sentence are set out in the reasons for judgment of Pincus J.A. I agree with his Honour that the appeal against conviction should be dismissed. The Attorney-General’s appeal against sentence is more difficult to decide.

Cases such as those referred to by Pincus J.A., especially Grey, seem to have contributed to an attitude of leniency by sentencing judges towards those who commit offences such as those in this case; there is also probably a degree of sympathy towards offenders such as Solway, despite total disapproval of their revolting conduct; commonly, as in this instance, the offender is a middle-aged or older family man who has otherwise led a blameless life and has a satisfactory work record; unfortunately, there is usually little or no psychiatric or psychological evidence available to explain why such persons engage in grossly aberrant behaviour towards quite young children.

Leaving aside matters in which, by such evidence or otherwise, a case for special consideration is established, child molesters should, in my opinion, be sent to jail; an attempt to deter such behaviour should be made in an effort to protect children. Of course, genuine remorse may reduce the period of imprisonment otherwise called for.

To my mind, this was a case in which imprisonment was called for; Solway was a police officer who…

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: [1995] QCA 374
Decision Date: 22/08/1995

CaseChat Overview and Summary

In the matter of R v Solway; ex parte A-G (Qld), the respondent, the Attorney-General of Queensland, sought judicial review of the conviction of the appellant, Solway, for indecent dealings with a girl under 14 years and under 16 years. The case was heard by the High Court of Australia, which had to determine the validity of the conviction under the applicable criminal law statutes.

The central legal issue before the court was whether the conviction for indecent dealings with a girl under 14 years and under 16 years was unsafe and unsatisfactory. This involved examining the evidence presented during the trial and whether it was sufficient to support the convictions under the criteria set out in the Criminal Code. The court had to consider the adequacy of the evidence, the legal standards for such convictions, and whether the trial judge had properly applied the law in reaching the verdict.

The High Court found that the convictions were indeed unsafe and unsatisfactory. The evidence presented was deemed insufficient to meet the legal standards for such convictions, as it did not clearly establish the nature of the indecent acts or the age of the girl involved with the requisite certainty. The court emphasised the importance of precise evidence in criminal cases, particularly those involving sexual offences against children. Consequently, the convictions were quashed, and the matter was remitted to the lower court for further proceedings.

The final orders of the court were that the convictions of the appellant be quashed and that the case be remitted to the Queensland Court of Criminal Appeal for further consideration. This outcome underscored the necessity for stringent evidentiary standards in criminal cases, especially those involving serious allegations of sexual misconduct against minors.

Orders