R v T - [1996] QCA 463

IN THE COURT OF APPEAL	[1996] QCA 463
SUPREME COURT OF QUEENSLAND	C.A. No. 204 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. de Jersey J.
[R. v. T]

T H E Q U E E N

v.
T

Appellant

FITZGERALD P.

PINCUS J.A. DE JERSEY J.

Judgment delivered 1/11/1996

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT, PINCUS J.A. AND DE JERSEY J. CONCURRING IN THEIR REASONS AND AS TO THE ORDER MADE; FITZGERALD P. DISSENTING.

Appeal against conviction is dismissed.

Application for leave to appeal against sentence is refused.

CATCHWORDS:	CONVICTION - attempted incest (x 1), indecent dealing ( x 2) - all offences allegedly committed in a single incident upon the appellant’s grand-daughter - whether the convictions unsafe because of inconsistencies in the complainant’s evidence - whether trial was unfair - whether the trial judge made mistakes adverse to the appellant - whether jury acting rationally must have convicted irrespective of any error - admissibility of evidence, including evidence of fresh complaint - whether verdicts of acquittal should be entered/new trial ordered.
ss. 616(1), 668E(1A) Criminal Code (Qld.) s. 93A Evidence Act 1977 R. v. Barbeler [1977] Qd.R. 80 R. v. C (C.A. 116/95, unreported, 4 August 1995) R. v. Cumner (C.A. 108/94, unreported, 28 July 1994) O’Neill (C.A. 435/94, unreported, 4 August 1995) Pfennig v. R. (1995) 182 C.L.R. 461 Robinson (C.A. 1/95, unreported, 4 August 1995) Stretton and McCallion (1988) 86 Crim.App.R. 7 Wyatt (1990) Crim.L.R. 343
SENTENCE - “one off” occurrence - 49 year old appellant with no prior conviction - no remorse - gross abuse of trust - complainant cross-examined at trial and committal - whether a wholly suspended sentence should have been imposed rather than three year and two year terms of imprisonment to be served concurrently.
R. v. C (C.A. 479 and 500 of 1994, unreported, 15 February 1995)
Counsel:	Mr P. Hardcastle for the appellant Mrs L. Clare for the respondent
Solicitors:	G. Brown for the appellant Queensland Director of Public Prosecutions for the respondent
Date(s) of Hearing:	28 August 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 1/11/1996

The appellant has appealed against his conviction in the District Court at Brisbane on 26 April 1996 of one offence of attempted incest with his grand-daughter and two offences of indecently dealing with her. All offences were allegedly committed in a single incident on 2 April 1995. The appellant has also applied for leave to appeal against the sentences imposed on him; he was sentenced to imprisonment for three years for attempted incest and for two years for each of the indecent dealing offences, all to be served concurrently.

In my opinion, a conclusion by this Court that the appellant was guilty of the offences is of limited relevance if the trial judge made mistakes adverse to the appellant and is of no relevance if his trial was unfair. In the former case, but not the latter, convictions are sustainable under sub-s. 668E(1A) of the Criminal Code if…

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 T

Details

AGLC: R v T [1996] QCA 463
Case: [1996] QCA 463
Decision Date: 1/11/1996

CaseChat Overview and Summary

The appellant was convicted of one count of attempted incest and two counts of indecent dealing, all offences occurring in a single incident involving his grand-daughter. The appellant appealed against his convictions, arguing that they were unsafe due to inconsistencies in the complainant’s evidence and that the trial was unfair. He further contended that the trial judge made mistakes adverse to him and sought an acquittal or a new trial. The Court of Appeal was tasked with determining whether the convictions were unsafe, if the trial was conducted unfairly, and whether any errors by the trial judge were significant enough to warrant a new trial or acquittal.

The legal issues before the Court of Appeal centred on the reliability and consistency of the complainant’s evidence, the fairness of the trial process, and the potential impact of any judicial errors on the outcome. The Court had to consider whether the inconsistencies in the complainant’s evidence were significant enough to render the convictions unsafe. Additionally, the Court assessed whether the trial was conducted fairly and if there were any judicial errors that could have adversely affected the appellant. The admissibility of certain evidence, including a fresh complaint, was also examined to determine its impact on the jury's decision-making process.

In delivering the judgment, the Court of Appeal held that the convictions were safe and sound, notwithstanding the inconsistencies in the complainant’s evidence. The Court found that the trial was conducted fairly and that any errors made by the trial judge did not prejudice the appellant to the extent that it warranted a new trial or an acquittal. The evidence, including the fresh complaint, was deemed admissible and did not unduly influence the jury. Consequently, the Court dismissed the appeal and affirmed the convictions.

The final orders of the Court of Appeal were that the appeal be dismissed, and the convictions for attempted incest and indecent dealing were upheld. The Court found that the jury, acting rationally, must have convicted the appellant irrespective of any error or inconsistency in the evidence presented.

Orders