R v TAC - [2013] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAC [2013] QCA 283

PARTIES:

R
v
TAC
(appellant)

FILE NO/S:

CA No 115 of 2013
DC No 1709 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Order delivered ex tempore on 19 August 2013
Further orders and reasons delivered on 1 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2013

JUDGES:

Holmes and Muir JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 19 August 2013:

1.   The appeal is allowed and the convictions are set aside.

Delivered on 1 October 2013:

1.   The verdict of guilty on count 1 should be set aside and an acquittal entered on that count.

2.   There should be a re-trial on the remaining counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of six counts of indecent treatment of his daughter, a child under 12 years who was in his care – where the offences involved exposing the child to an indecent film, exposing himself to the complainant, masturbating in front of the complainant and forcing the complainant to masturbate him – where the appellant submitted that the jury should have entertained a reasonable doubt about his guilt – where the complaint was made after a delay of seven to eight years – where there were some discrepancies between the evidence of the complainant and the evidence of preliminary complaint witnesses – where in giving pre-recorded evidence the complainant gave only a partial account of the offences – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of six counts of indecent treatment of his daughter, a child under 12 years who was in his care – where the appellant was convicted on counts 1 and 4 of wilfully exposing the complainant to an indecent film – where the complainant’s evidence was that there was only one film shown to her – whether the jury could be satisfied on the evidence before it beyond reasonable doubt that the appellant was guilty of two separate counts of exposing the complainant to an indecent film

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of a support person as required by s 21AW(2) of the Evidence Act when the child complainant gave pre-recorded evidence – whether a substantial miscarriage of justice occurred

Criminal Code 1899 (Qld), s 668E(1A)
Evidence Act 1977 (Qld), s 21AW(2)

R v BCL[2013] QCA 108, cited

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 TAC

Details

AGLC: R v TAC [2013] QCA 283
Case: [2013] QCA 283
Decision Date: 1 October 2013

CaseChat Overview and Summary

The appellant, who was convicted of six counts of indecent treatment of his daughter, a child under 12 years old who was in his care, appealed against his conviction. The offences involved exposing the child to an indecent film, exposing himself to the complainant, masturbating in front of the complainant, and forcing the complainant to masturbate him. The complaint was made after a delay of seven to eight years, and there were some discrepancies between the evidence of the complainant and the evidence of preliminary complaint witnesses. The complainant gave only a partial account of the offences when giving pre-recorded evidence. The appellant submitted that the jury should have entertained a reasonable doubt about his guilt. The court had to decide whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

The court examined whether the jury could be satisfied on the evidence before it beyond reasonable doubt that the appellant was guilty of two separate counts of exposing the complainant to an indecent film. The complainant’s evidence was that there was only one film shown to her. The court concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of two separate counts of exposing the complainant to an indecent film. Additionally, the court found that the trial judge failed to direct the jury in respect of the presence of a support person as required by section 21AW(2) of the Evidence Act when the child complainant gave pre-recorded evidence. The court found that this non-direction amounted to a substantial miscarriage of justice.

The appeal was allowed, and the convictions were set aside. The verdict of guilty on count 1 was set aside, and an acquittal was entered on that count. There should be a re-trial on the remaining counts. The court’s decision was based on the fact that the evidence did not support the jury’s verdict beyond reasonable doubt, and the non-direction of the trial judge amounted to a substantial miscarriage of justice.

Orders

Orders of the court

Delivered ex tempore on 19 August 2013:

1. The appeal is allowed and the convictions are set aside.

Delivered on 1 October 2013:

1. The verdict of guilty on count 1 should be set aside and an acquittal entered on that count.

2. There should be a re-trial on the remaining counts.

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 TAC [2013] QCA 283
PARTIES:	R v TAC (appellant)
FILE NO/S:	CA No 115 of 2013 DC No 1709 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Order delivered ex tempore on 19 August 2013 Further orders and reasons delivered on 1 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2013
JUDGES:	Holmes and Muir JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 19 August 2013: 1. The appeal is allowed and the convictions are set aside. Delivered on 1 October 2013: 1. The verdict of guilty on count 1 should be set aside and an acquittal entered on that count. 2. There should be a re-trial on the remaining counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of six counts of indecent treatment of his daughter, a child under 12 years who was in his care – where the offences involved exposing the child to an indecent film, exposing himself to the complainant, masturbating in front of the complainant and forcing the complainant to masturbate him – where the appellant submitted that the jury should have entertained a reasonable doubt about his guilt – where the complaint was made after a delay of seven to eight years – where there were some discrepancies between the evidence of the complainant and the evidence of preliminary complaint witnesses – where in giving pre-recorded evidence the complainant gave only a partial account of the offences – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of six counts of indecent treatment of his daughter, a child under 12 years who was in his care – where the appellant was convicted on counts 1 and 4 of wilfully exposing the complainant to an indecent film – where the complainant’s evidence was that there was only one film shown to her – whether the jury could be satisfied on the evidence before it beyond reasonable doubt that the appellant was guilty of two separate counts of exposing the complainant to an indecent film CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the trial judge failed to direct the jury in respect of the presence of a support person as required by s 21AW(2) of the Evidence Act when the child complainant gave pre-recorded evidence – whether a substantial miscarriage of justice occurred Criminal Code 1899 (Qld), s 668E(1A) Evidence Act 1977 (Qld), s 21AW(2) R v BCL[2013] QCA 108, cited