R v T - [1996] QCA 45

[1996] QCA 45

COURT OF APPEAL

MACROSSAN CJ
FITZGERALD P
DAVIES JA

CA No 433 of 1995

THE QUEEN

T Appellant/Applicant

BRISBANE

DATE 8/02/96

JUDGMENT

THE CHIEF JUSTICE: The appellant was convicted on four counts of indecently dealing with his niece who was in his care at the time. In the circumstances of two of the counts there was the further aspect that the child was under the age of 12 years. There is an appeal against conviction upon various grounds which I can turn to in a moment.

It is helpful first to set out the circumstances of the offences and describe the way the trial proceeded. The only witness for the Crown was the complainant herself. She was born on 25 July 1980. The offences in question occurred in a period commencing in September 1991 and extending through to, it would seem, about July 1992.

In respect of the first count the complainant's evidence was that she had been taken to a swimming pool at Wynnum by the appellant and it would appear to be a public swimming pool. Her version was that he would not let her swim but he would hold her up against a wall or in a corner and in that situation touched her on the chest and on the vagina.

In respect of the second count the complainant's version was that she was in Toowoomba for a cousin's birthday party, having travelled up there with her parents and sisters. However she stayed overnight in a motel room with the appellant, her uncle. She said she slept in a double bed with the appellant and she said that on this occasion the appellant rubbed her chest and her vagina and also rubbed his groin against her side.

Counts 3 and 4 were concerned with events that occurred at Bribie Island when the complainant and the appellant went to do some painting and drawing together. They went up on a Friday and returned home on Sunday. While there they stayed in a motel room which contained a double bed and a single bed. The complainant said that they both slept in the double bed and that on the Saturday night when they were there she said the appellant touched her on the chest and vagina and also on this occasion he put his fingers in her vagina and he made her touch his penis as well as rubbing himself against her.

Amongst the evidence in the trial it appeared that the appellant took photographs of her while at Bribie Island wearing clothing that he had purchased for her. The photographs tendered showed the complainant wearing a bathing suit at Wynnum also and showed her again on another occasion wearing a white bikini which the appellant had given her.

The appellant gave evidence and he denied the complainant's allegations. He agreed that he had taken the complainant swimming. His explanation of the circumstances included his claim that he had had a back operation which seems…

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 45
Case: [1996] QCA 45
Decision Date: 8 February 1996

CaseChat Overview and Summary

The case of R v T involved the appellant, who was convicted on four counts of indecently dealing with his niece. The appellant appealed against his conviction, arguing various grounds, including the exclusion of a clinical psychologist during the complainant's testimony, the accidental inclusion of a will in the jury's documents, the failure of the legal representatives to call certain witnesses, and the inadequacy of the trial judge's directions to the jury. The court examined each ground of appeal and found that none were substantiated. The court held that the exclusion of the clinical psychologist was within the trial judge's discretion, the accidental inclusion of the will did not prejudice the jury's consideration of the case, the legal representatives' decision not to call witnesses was a tactical decision not amounting to a miscarriage of justice, and the trial judge's directions to the jury were adequate. Additionally, the court considered the sentence imposed on the appellant, which was 15 months, and found it to be within the appropriate range, thus refusing the application for leave to appeal against the sentence.

The court was required to decide whether the trial judge erred in excluding the clinical psychologist, whether the accidental inclusion of the will caused a miscarriage of justice, whether the legal representatives' failure to call certain witnesses resulted in a miscarriage of justice, and whether the trial judge's directions to the jury were adequate. Furthermore, the court needed to consider the sentence imposed on the appellant and whether it was excessive.

The court found that the trial judge's exclusion of the clinical psychologist was within his discretion and did not prejudice the case. The accidental inclusion of the will did not result in a miscarriage of justice, as the jury was focused on whether the association between the appellant and the complainant involved an improper sexual element. The court held that the legal representatives' decision not to call certain witnesses was a tactical decision and did not amount to a miscarriage of justice, as the evidence would likely have been inadmissible. Lastly, the court found the trial judge's directions to the jury to be adequate, and the conviction to be supported by the complainant's convincing testimony.

In conclusion, the court dismissed the appeal against conviction and refused the application for leave to appeal against the sentence. The sentence of 15 months was found to be within the appropriate range, and the court found no justification for interference.

Orders