R v The Queen - [2001] QCA 142

[2001] QCA 142

COURT OF APPEAL

McPHERSON JA
WHITE J
HOLMES J

CA No 316 of 2000

THE QUEEN

R (Appellant)

BRISBANE

..DATE 17/04/2001

JUDGMENT

McPHERSON JA: The appellant was tried in the District Court at Bundaberg on an indictment charging six counts of rape and two of indecent assault. He was found guilty of five counts of rape but acquitted of one charge of rape and of the two counts of indecent assault. This is his appeal against those convictions.

The alleged offences took place during a period of about six weeks in 1998 when the complainant was staying with the applicant in a cabin, or what was described at times as a humpy, in the country. She is the appellant's natural daughter although she and her father, the appellant, had had no association at least from the time of her birth until these incidents in 1998. She was by then 16 years old and he about 55. Their coming together at this late stage was precipitated by the fact that she was having psychiatric problems, had attempted suicide and said she wished to get away from her mother.

The case at trial presented some surprising features which caused the trial Judge, contrary to his normal practice in such matters, to provide this Court with a detailed report expressing his concerns about the evidence. The rapes or some of them were alleged to have taken place in the appellant's bed in the cabin. One or more of them that took place there occurred at a time when another woman, DJ, was sleeping in the bed beside the complainant.

The complainant made no complaint to her nor to her half brother who at the time was living in the cabin or in an adjoining caravan, nor to her mother whom she telephoned with some frequency during her stay in the country; nor did she complain to a medical practitioner whom she consulted in Gin Gin on three occasions, nor to a counsellor at the Mental Health Unit in that town whom she also saw.

The immediate problem with the convictions is the alleged inconsistency of the verdicts of not guilty on counts 3, 5 and 6 with the guilty verdicts on the other five counts. There was evidence from DJ that she had seen the appellant and the complainant kissing passionately and at the same time engaging in mutual fondling of each other's genitalia. Conceivably, that might go to explain the verdicts of not guilty on counts 3 and 6 which were the charges of indecent assault. The jury might perhaps have considered there was a question whether the Crown had proved beyond reasonable doubt that the complainant had not consented to such conduct on those occasions having regard to the evidence about what had been done between them on a previous occasion.

But that would not explain why the jury acquitted on the charge of rape in count 5. The leading authority on inconsistency of verdicts is now

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 The Queen

Details

AGLC: R v The Queen [2001] QCA 142
Case: [2001] QCA 142
Decision Date: 17/04/2001

CaseChat Overview and Summary

In the case of R v The Queen, the appellant was convicted in the District Court at Bundaberg on five counts of rape and acquitted on one count of rape and two counts of indecent assault. The appellant appealed against his convictions. The alleged offences took place in 1998 when the complainant, who was 16 years old at the time, stayed with the appellant in a cabin in the country. The appellant, who was approximately 55 years old, was the complainant's natural father, although they had not been associated until the incidents in 1998. The trial presented some surprising features, leading the trial judge to provide a detailed report expressing his concerns about the evidence. The complainant made no complaints to anyone during her stay with the appellant, including to a medical practitioner and a counsellor.

The primary legal issue the court had to decide was whether the convictions could be considered inconsistent, warranting the setting aside of the convictions. The court referred to the leading authority of Jones v The Queen (1997) 191 CLR 439, which states that inconsistent verdicts warrant intervention on appeal only if there is no rational basis for distinguishing between the verdicts. The court also considered the decision of Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627, which suggests that a new trial should be ordered only if the evidence at the original trial was sufficiently cogent to justify a conviction. The court found that the evidence was not sufficiently cogent to justify a conviction, and therefore, the appeal should be allowed and the convictions and verdicts set aside in respect of counts 1, 2, 4, 7 and 8 in the indictment. Verdict and judgment of acquittal will be entered in respect of each of those counts.

The court's reasoning was based on the fact that the evidence on each charge was the same, consisting of the uncorroborated testimony of the complainant. If the jury doubted her word on count 5, there is no apparent reason why they should not have done so on the other counts charging rape against the appellant. The court concluded that the appeal should be allowed, the convictions quashed and the verdicts set aside, as it was not an occasion where the jury could be seen to have simply decided to be "merciful" in relation to that charge. The orders proposed by the presiding judge will be as stated above, and the convictions and verdicts will be set aside in respect of counts 1, 2, 4, 7 and 8 in the indictment. Verdict and judgment of acquittal will be entered in respect of each of those counts.

Orders