CATCHWORDS: CONVICTION - unlawfully maintaining a sexual relationship - circumstance of aggravation - whether trial judge erred in refusing an application at trial for further and better particulars of the material count against the appellant - degree of specificity required to be alleged by the prosecution - whether the trial judge misdirected the jury - appellant failed to apply for redirections at trial - whether a substantial miscarriage of justice resulted.
SENTENCE - whether manifestly excessive - no attempt to argue that proposition at the hearing of the appeal.
Criminal Code, ss. 210(1)(a), 210(2), 229 (1A) , 229(1B), 229B
Giretti and Giretti (1986) 24 A.Crim.R. 112
Hamzy (1994) 74 A.Crim.R. 341
Johnson v. Miller (1937) 59 C.L.R. 467
K (C.A. 82 of 1995, unreported, 29 August 1995)
Montgomery v. Stewart (1967) 116 C.L.R. 220
S. v. R. (1989) 168 C.L.R. 266
The Director of Public Prosecution (Victoria) v. His Honour Judge G.D. Lewis of the County Court of Victoria (Vic. C.A. 4148 of 1996)
Walsh v. Tattersall (1996) 139 A.L.R. 27

Counsel:Mr A. Boe, Solicitor, for the appellant.
Mr P. Rdigway for the respondent.

Solicitors:Boe & Callaghan for the appellant.
Queensland Director of Public Prosecutions for the respondent.

Hearing Dates: 10 and 17 October 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22 November 1996

On 14 March 1996, the appellant was convicted in the District Court at Maroochydore of one offence of indecent dealing with a girl under the age of 14 years between February and April 1988, one offence of indecent assault on a female between June and July 1991, and one offence of unlawfully maintaining a sexual relationship involving indecent dealing with a child under 16 during an intervening period which extended from July 1989 to January 1991. He has appealed against his convictions, but his grounds of appeal are confined to the offence of unlawfully maintaining a sexual relationship. Although the appellant has also applied for leave to appeal against the sentences imposed on him when he was convicted on the ground that his sentences were manifestly excessive, no attempt was made to advance that proposition by argument. The complainant had been raised as the daughter of the appellant and his wife from the time when she was aged about two years, and the sentences, concurrent terms of imprisonment for one year in respect of each of the offences of indecent dealing and indecent assault and three years for the offence of unlawfully maintaining a sexual relationship, were plainly not beyond the range of a sound sentencing discretion. Accordingly, the application for leave to appeal against sentence should be refused.

Maintaining an unlawful…

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 Thompson

Details

AGLC: R v Thompson [1996] QCA 468
Case: [1996] QCA 468
Decision Date: 22 November 1996

CaseChat Overview and Summary

The Supreme Court of Queensland's Court of Appeal heard an appeal by the appellant against his conviction and sentence. The appellant was convicted in the District Court at Maroochydore of one count of indecent dealing with a girl under the age of 14 years, one count of indecent assault on a female, and one count of unlawfully maintaining a sexual relationship involving indecent dealing with a child under 16 years. The appeal against conviction was limited to the offence of unlawfully maintaining a sexual relationship, while the application for leave to appeal against sentence was not argued. The appellant claimed that the trial judge erred in refusing an application for further and better particulars of the material count against him and that the trial judge misdirected the jury. The prosecution argued that the appellant was entitled to the particulars he received, that the jury could convict if they were satisfied that the requisite number of sexual acts occurred during the relationship, and that the trial judge's summing up was not deficient. The Court of Appeal held that the prosecution was required to allege with specificity the acts constituting offences of a sexual nature and that the jury was required to be unanimously satisfied beyond reasonable doubt that the appellant had done the same three acts each constituting an offence of a sexual nature. Despite the errors at trial, the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused.

Orders