R v Spreadborough - [2020] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

R v Spreadborough [2020] QCA 291

PARTIES:

R
v
SPREADBOROUGH, Peter Archibald
(appellant)

FILE NO/S:

CA No 245 of 2019
DC No 2396 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 26 August 2019 (Dearden DCJ)

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2020

JUDGES:

Sofronoff P and Philippides JA and Davis J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was charged with one count of indecent treatment of a child under 12 and a second count of indecent treatment of a child under 16 – where after a trial the jury found the appellant not guilty on the first count and guilty on the second count – where the appellant was a masseur – where the complainants were two brothers who had been taken to the appellant’s premises for a massage – where the appellant submits that the two counts were improperly joined – where the learned judge in their ruling identified the following factors as showing that the appellant’s alleged behaviours were similar in each case: both complainants were boys, the offences were both alleged to occur on the appellant’s premises, they were alleged to occur during a massage and both offences were committed while the boys’ parents were absent – whether the learned judge erred in refusing the application for separate trials

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant gave evidence at trial – where in his own evidence the appellant neither admitted nor denied that he was gay – where the evidence of the two child complainants was that they perceived the appellant to be gay – where defence counsel put to the jury a theory that the complainants had fabricated their complaints out of embarrassment – where the appellant submits that a statement made by the prosecutor in his closing address about the appellant being gay was unfair and carried with it the risk of introducing prejudice and impermissibly enhancing the complainant’s credibility – whether the prosecutor’s statement rendered the trial unfair by its effect on the jury – whether a miscarriage of justice attended the trial

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, followed
R v McNeish[2019] QCA 191, followed
Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, disapproved

COUNSEL:

M J Jackson for the appellant (pro bono)
D C Boyle for the respondent

SOLICITORS:

Fisher Dore for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was charged with one count of indecent treatment of a child under 12 and…

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 Spreadborough

Details

AGLC: R v Spreadborough [2020] QCA 291
Case: [2020] QCA 291
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appeal in R v Spreadborough involves the appellant who was convicted of one count of indecent treatment of a child under 16 but acquitted on a separate count of indecent treatment of a child under 12. The appellant, a masseur, was charged with the offences after two brothers, who were taken to his premises for a massage, alleged inappropriate conduct. The primary issue before the court was whether the trial judge erred in denying the appellant's application for separate trials on the two counts. The appellant argued that the counts were improperly joined as they involved distinct incidents and different victims, which should have warranted separate trials.

The court examined the principles governing the joinder of charges and the criteria for separate trials, considering factors such as the similarity of the offences, the potential for prejudice, and the convenience of the parties. The learned judge had found the offences similar enough to be tried together, noting the commonality in the victims, the location, the context of the alleged offences, and the absence of the boys' parents during the incidents. The court upheld the trial judge's decision, finding no error in refusing the application for separate trials. The appellant's submission that the joinder led to a trial that was unfair did not succeed, as the court found the factors identified by the trial judge justified the joinder.

Further, the appellant contested the fairness of the trial, arguing that a statement made by the prosecutor regarding his sexual orientation was prejudicial and contributed to a miscarriage of justice. The appellant claimed that this comment unfairly bolstered the credibility of the complainants. However, the court found that the prosecutor's statement did not introduce any new evidence or prejudice the jury against the appellant. The court concluded that the trial was fair and that no miscarriage of justice occurred.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Spreadborough [2020] QCA 291
PARTIES:	R v SPREADBOROUGH, Peter Archibald (appellant)
FILE NO/S:	CA No 245 of 2019 DC No 2396 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 26 August 2019 (Dearden DCJ)
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2020
JUDGES:	Sofronoff P and Philippides JA and Davis J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was charged with one count of indecent treatment of a child under 12 and a second count of indecent treatment of a child under 16 – where after a trial the jury found the appellant not guilty on the first count and guilty on the second count – where the appellant was a masseur – where the complainants were two brothers who had been taken to the appellant’s premises for a massage – where the appellant submits that the two counts were improperly joined – where the learned judge in their ruling identified the following factors as showing that the appellant’s alleged behaviours were similar in each case: both complainants were boys, the offences were both alleged to occur on the appellant’s premises, they were alleged to occur during a massage and both offences were committed while the boys’ parents were absent – whether the learned judge erred in refusing the application for separate trials CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant gave evidence at trial – where in his own evidence the appellant neither admitted nor denied that he was gay – where the evidence of the two child complainants was that they perceived the appellant to be gay – where defence counsel put to the jury a theory that the complainants had fabricated their complaints out of embarrassment – where the appellant submits that a statement made by the prosecutor in his closing address about the appellant being gay was unfair and carried with it the risk of introducing prejudice and impermissibly enhancing the complainant’s credibility – whether the prosecutor’s statement rendered the trial unfair by its effect on the jury – whether a miscarriage of justice attended the trial Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, followed R v McNeish[2019] QCA 191, followed Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, disapproved
COUNSEL:	M J Jackson for the appellant (pro bono) D C Boyle for the respondent
SOLICITORS:	Fisher Dore for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent