R v TAB - [2013] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAB [2013] QCA 34

PARTIES:

R
v
TAB
(appellant)

FILE NO/S:

CA No 158 of 2012
DC No 1797 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2013

JUDGES:

Holmes, Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Allow the appeal.

2.    Set aside the verdict of guilty and conviction on Count 3.

3.    Enter a verdict of acquittal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was charged with one count of attempted indecent treatment and two counts of indecent treatment each with aggravating circumstance that the complainant was under 12 years of age – where the appellant was convicted of only one indecent treatment count – where the appellant appeals his conviction on the ground that the guilty verdict was unreasonable – where the appellant contends that the guilty verdict cannot be reconciled with the acquittals – where other evidence was inconsistent with the complainant's account – where there were other reasons for doubt as to the quality of the complainant's recollection – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty – whether a miscarriage of justice occurred

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – DIRECTIONS TO JURY – REASONABLE DOUBT – PARTICULAR CASES – where the appellant was charged with one count of attempted indecent treatment and two counts of indecent treatment each with aggravating circumstance that the complainant was under 12 years of age – where the appellant was convicted of only one indecent treatment count – where the trial judge directed the jury that if they had a reasonable doubt as to a particular count they should consider the reason for the doubt, whether it affected their assessment of the rest of the complainant's evidence and whether it caused a reasonable doubt as to her evidence on the remaining counts – where the appellant submits the learned trial judge erred in failing to make specific reference to the significance of such a doubt to the assessment of the complainant's truthfulness and reliability – whether the direction given was adequate – whether a miscarriage of justice occurred

M v The Queen (1994) 181 CLR 487, [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348, [1996] HCA 35, considered
R v JK [2005] QCA 307, confirmed
R vMarkuleski (2001) 52 NSWLR 82, [2001] NSWCCA 290, considered
R v Smillie (2002) 134 A Crim R 100, [2002] QCA 341, cited

COUNSEL:

G M McGuire for the appellant
M R Byrne SC for the respondent

SOLICITORS:

Russo Lawyers for the appellant
Director of Public…

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 TAB

Details

AGLC: R v TAB [2013] QCA 34
Case: [2013] QCA 34
Decision Date: 8 March 2013

CaseChat Overview and Summary

The appellant appealed his conviction for one count of indecent treatment, arguing that the guilty verdict was unreasonable in light of the evidence presented. The court had to determine if the jury could have reasonably been satisfied beyond reasonable doubt of the appellant's guilt, particularly in light of the acquittals on other charges and the inconsistencies in the complainant's account. The appellant also contended that the trial judge's direction to the jury on reasonable doubt was inadequate, particularly in not highlighting the significance of doubt in assessing the complainant's truthfulness and reliability.

The court examined the evidence and the reasoning behind the jury's verdict. It considered whether the inconsistencies and other reasons for doubt regarding the complainant's account were sufficient to make the guilty verdict unreasonable. The court also assessed the adequacy of the trial judge's direction on reasonable doubt, and whether the direction could have influenced the jury's decision. Ultimately, the court found that the evidence and the jury's reasoning were insufficient to support the guilty verdict beyond reasonable doubt, and that the trial judge's direction may have contributed to a miscarriage of justice.

In light of these findings, the court allowed the appeal and set aside the conviction on Count 3. It ordered that a verdict of acquittal be entered on that count. The court held that the evidence did not support a guilty verdict beyond reasonable doubt and that the trial judge's direction may have been inadequate, leading to an unfair trial. The court's decision underscores the importance of ensuring that verdicts are supported by the evidence and that juries are properly directed on matters of reasonable doubt.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the verdict of guilty and conviction on Count 3.

3. Enter a verdict of acquittal.

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 TAB [2013] QCA 34
PARTIES:	R v TAB (appellant)
FILE NO/S:	CA No 158 of 2012 DC No 1797 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2013
JUDGES:	Holmes, Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the verdict of guilty and conviction on Count 3. 3. Enter a verdict of acquittal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was charged with one count of attempted indecent treatment and two counts of indecent treatment each with aggravating circumstance that the complainant was under 12 years of age – where the appellant was convicted of only one indecent treatment count – where the appellant appeals his conviction on the ground that the guilty verdict was unreasonable – where the appellant contends that the guilty verdict cannot be reconciled with the acquittals – where other evidence was inconsistent with the complainant's account – where there were other reasons for doubt as to the quality of the complainant's recollection – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty – whether a miscarriage of justice occurred CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – STANDARD OF PROOF – DIRECTIONS TO JURY – REASONABLE DOUBT – PARTICULAR CASES – where the appellant was charged with one count of attempted indecent treatment and two counts of indecent treatment each with aggravating circumstance that the complainant was under 12 years of age – where the appellant was convicted of only one indecent treatment count – where the trial judge directed the jury that if they had a reasonable doubt as to a particular count they should consider the reason for the doubt, whether it affected their assessment of the rest of the complainant's evidence and whether it caused a reasonable doubt as to her evidence on the remaining counts – where the appellant submits the learned trial judge erred in failing to make specific reference to the significance of such a doubt to the assessment of the complainant's truthfulness and reliability – whether the direction given was adequate – whether a miscarriage of justice occurred M v The Queen (1994) 181 CLR 487, [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348, [1996] HCA 35, considered R v JK [2005] QCA 307, confirmed R vMarkuleski (2001) 52 NSWLR 82, [2001] NSWCCA 290, considered R v Smillie (2002) 134 A Crim R 100, [2002] QCA 341, cited
COUNSEL:	G M McGuire for the appellant M R Byrne SC for the respondent
SOLICITORS:	Russo Lawyers for the appellant Director of Public…