R v Thaiday - [2009] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thaiday [2009] QCA 27

PARTIES:

R
v
THAIDAY, Patrick Dominic
(appellant)

FILE NO/S:

CA No 249 of 2008
DC No 123 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2009

JUDGES:

Keane and Muir JJA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed

2. Conviction quashed and verdict of "not guilty" entered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where complainant commenced proceedings approximately 24 years after the incident allegedly occurred – where evidence of complainant and recipient of first complaint different – where trial judge gave Domican/Longman direction to jury – where jury convicted despite direction – whether a significant possibility that an innocent person has been convicted exists

Criminal Code 1899 (Qld), s 688E(1)
Criminal Practice Rules 1999 (Qld), r 94

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

COUNSEL:

K A Mellifont for the appellant
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: On 4 September 2008 the appellant was convicted upon the verdict of a jury of one count of indecent dealing with a girl under the age of 14 years and one count of rape. For the offence of rape he was sentenced to eight years imprisonment. He was sentenced to a lesser concurrent term of imprisonment for the offence of indecent dealing.

The appellant seeks to appeal against his convictions on the basis that "the verdict was unreasonable or cannot be supported having regard to the evidence."[1] A discussion of this ground of appeal must commence with a summary of the evidence adduced at trial.
[1]Cf s 668E(1) of the Criminal Code 1899 (Qld).

The case at trial

The Crown case was that the offences in question had been committed between

1 January 1984 and 31 March 1985. The complainant was born on 4 April 1973. The appellant is the nephew of her step-father.

The complainant's evidence was that she was about 10 years old at the time of the offences which occurred, she said in her evidence-in-chief, "around '84, '85". The complainant was 35 years old when she gave evidence at trial.

The complainant said that at the time of the offences she was living with her mother and step-father in a house at Rasmussen in Townsville.

The complainant said that in the late afternoon of a day when her parents had been hosting a party at their house she went into her bedroom and turned around to find the appellant "standing there at the door". The appellant had been drinking all afternoon. He pushed her onto the bed and lay on…

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 Thaiday

Details

AGLC: R v Thaiday [2009] QCA 27
Case: [2009] QCA 27
Decision Date: 24 February 2009

CaseChat Overview and Summary

In the case of R v Thaiday, the defendant appealed against his conviction for sexual offences, arguing that the verdict was unreasonable or unsupportable in light of the evidence. The High Court of Australia was asked to determine whether the trial judge's decision to allow the appeal and quash the conviction was appropriate. The complainant in this matter initiated legal proceedings approximately 24 years after the alleged incident, and the evidence presented by the complainant and the recipient of the first complaint differed significantly. The trial judge had given a Domican/Longman direction to the jury, but the jury still convicted the defendant despite this direction.

The primary legal issue before the court was whether there existed a significant possibility that an innocent person had been convicted. The court considered the nature of the delay between the alleged incident and the commencement of proceedings, the differences in evidence between the complainant and the recipient of the first complaint, and the jury's decision to convict despite the Domican/Longman direction. The High Court concluded that these factors created a significant possibility that an innocent person had been convicted, and thus the trial judge's decision to allow the appeal and quash the conviction was appropriate.

The High Court found that the significant delay in commencing legal proceedings, the differing accounts of the events, and the jury's decision to convict despite the Domican/Longman direction all contributed to a substantial doubt about the reliability of the evidence and the defendant's guilt. The court held that the trial judge had exercised his discretion correctly in allowing the appeal and quashing the conviction, ultimately leading to the entry of a verdict of "not guilty." The appeal was allowed, and the conviction was quashed, with a verdict of "not guilty" entered in its place.

Orders

Orders of the court

1. Appeal allowed

2. Conviction quashed and verdict of "not guilty" entered

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 Thaiday [2009] QCA 27
PARTIES:	R v THAIDAY, Patrick Dominic (appellant)
FILE NO/S:	CA No 249 of 2008 DC No 123 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2009
JUDGES:	Keane and Muir JJA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Conviction quashed and verdict of "not guilty" entered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where complainant commenced proceedings approximately 24 years after the incident allegedly occurred – where evidence of complainant and recipient of first complaint different – where trial judge gave Domican/Longman direction to jury – where jury convicted despite direction – whether a significant possibility that an innocent person has been convicted exists Criminal Code 1899 (Qld), s 688E(1) Criminal Practice Rules 1999 (Qld), r 94 M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
COUNSEL:	K A Mellifont for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent