R v Tar - [2020] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAR [2020] QCA 227

PARTIES:

R
v
TAR
(appellant)

FILE NO/S:

CA No 327 of 2019
DC No 307 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 8 November 2019 (Lynch QC DJC)

DELIVERED ON:

20 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2020

JUDGES:

Morrison JA and Boddice and Jackson JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of unlawful and indecent treatment of a child under 12 years and two counts of rape – where the appellant was acquitted of a further count of unlawful and indecent treatment of a child under 12 years – where the appellant appeals against the verdicts on the ground that they are unreasonable – where there were a number of questions about inconsistencies or other aspects of the complainant’s evidence that caused the trial judge to give a direction to the jury that a number of features of the evidence had a tendency to undermine her reliability – where the appellant submits that the jury ought to have had a significant doubt as to whether they could accept the complainant’s evidence on which each conviction depended – where the respondent submits that discrepancies between different versions offered at different times are reasonably to be expected of a child witness – whether considering the evidence independently as a whole, in assessing the reasonableness of the verdicts, there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the required standard of proof

Criminal Code (Qld), s 210(1)(a), s 349, s 578, s 668D, s 668E
Evidence Act 1977 (Qld), s 21AK, s 93A

Pell v The Queen (2020) 94 ALJR 394; (2020) 376 ALR 478; [2020] HCA 12, applied
R v FQ[2008] QCA 68, cited
R v Hopwood[2001] QCA 565, cited
R v Morris; Ex parte Attorney-General [1996] 2 Qd R 68; (1995) 78 A Crim R 465; [1995] QCA 64, cited
R v W[1996] QCA 246, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

L Reece for the appellant
C Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the draft reasons prepared by Jackson J. Whilst I agree with his Honour’s reasons, I wish to add some comments of my own based on my review of the evidence.
The central attack made on the jury’s verdicts was that the complainant’s evidence was so lacking in reliability that the jury should have had a doubt about the appellant’s guilt. That lack of reliability was said to flow from various inconsistencies…

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 Tar

Details

AGLC: R v Tar [2020] QCA 227
Case: [2020] QCA 227
Decision Date: 20 October 2020

CaseChat Overview and Summary

The appellant, a man identified as Tar, appealed against his convictions for one count of unlawful and indecent treatment of a child under 12 years, and two counts of rape. The appeal was dismissed by the court. The appellant was acquitted of a further count of unlawful and indecent treatment of a child under 12 years. The appeal was based on the premise that the verdicts were unreasonable, considering the evidence presented. The complainant's evidence was subject to scrutiny due to inconsistencies and other concerns, which led the trial judge to caution the jury about the reliability of certain aspects of her testimony. The appellant argued that the jury should have harboured significant doubts about the complainant's evidence, which was central to each conviction. The respondent, however, contended that the discrepancies observed in the complainant's testimony were typical for a child witness and did not necessarily undermine the reliability of her evidence as a whole.

The central legal issue before the court was whether the verdicts were unreasonable or insupportable, considering the evidence. The court was required to determine whether the evidence, when assessed independently as a whole, suggested a significant possibility that an innocent person had been convicted, given that the evidence did not establish guilt to the required standard of proof. The court considered the nature and extent of the inconsistencies in the complainant's evidence, the direction given by the trial judge to the jury, and the arguments presented by both parties regarding the reliability and credibility of the complainant's testimony. The court ultimately found that, despite the inconsistencies and the trial judge's direction, the jury's verdicts were not unreasonable or insupportable when the evidence was considered in its entirety.

The court meticulously reviewed the evidence presented during the trial, including the testimony of the complainant and other witnesses. It noted that the trial judge had appropriately directed the jury to consider the reliability of the complainant's evidence in light of certain inconsistencies. However, the court concluded that the jury was entitled to accept the complainant's evidence as credible and reliable, particularly in light of the corroborative evidence and the overall strength of the prosecution's case. The court held that the jury's verdicts were reasonable and supported by the evidence, and thus the appeal was dismissed. The court did not find a significant possibility that an innocent person had been convicted, and therefore upheld the convictions for the unlawful and indecent treatment of a child under 12 years and the two counts of rape.

Orders

Orders of the court

Appeal dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TAR [2020] QCA 227
PARTIES:	R v TAR (appellant)
FILE NO/S:	CA No 327 of 2019 DC No 307 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba – Date of Conviction: 8 November 2019 (Lynch QC DJC)
DELIVERED ON:	20 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2020
JUDGES:	Morrison JA and Boddice and Jackson JJ
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of unlawful and indecent treatment of a child under 12 years and two counts of rape – where the appellant was acquitted of a further count of unlawful and indecent treatment of a child under 12 years – where the appellant appeals against the verdicts on the ground that they are unreasonable – where there were a number of questions about inconsistencies or other aspects of the complainant’s evidence that caused the trial judge to give a direction to the jury that a number of features of the evidence had a tendency to undermine her reliability – where the appellant submits that the jury ought to have had a significant doubt as to whether they could accept the complainant’s evidence on which each conviction depended – where the respondent submits that discrepancies between different versions offered at different times are reasonably to be expected of a child witness – whether considering the evidence independently as a whole, in assessing the reasonableness of the verdicts, there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the required standard of proof Criminal Code (Qld), s 210(1)(a), s 349, s 578, s 668D, s 668E Evidence Act 1977 (Qld), s 21AK, s 93A Pell v The Queen (2020) 94 ALJR 394; (2020) 376 ALR 478; [2020] HCA 12, applied R v FQ[2008] QCA 68, cited R v Hopwood[2001] QCA 565, cited R v Morris; Ex parte Attorney-General [1996] 2 Qd R 68; (1995) 78 A Crim R 465; [1995] QCA 64, cited R v W[1996] QCA 246, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
COUNSEL:	L Reece for the appellant C Cook for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent