SUPREME COURT OF QUEENSLAND
CITATION:
R v TU [2009] QCA 386
PARTIES:
R
v
TU
(appellant)FILE NO/S:
CA No 218 of 2009
DC No 376 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
1 December 2009
JUDGES:
Holmes JA, and Atkinson and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The appeal against conviction is dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant was found guilty of one count of indecent treatment of a child under 16, under 12, whilst under care and one count of indecent treatment of a child under 16 – where appellant argued that the verdicts of guilty on counts 1 and 3 on the indictment were unreasonable and inconsistent with his acquittal on count 2 – whether the verdicts were unreasonable or insupportable having regard to the evidence
Criminal Code 1899 (Qld), s 668E
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
R v DAL [2005] QCA 281, cited
R v PAH [2008] QCA 265, considered
R v SBL [2009] QCA 130, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, consideredCOUNSEL:
C Reid for the appellant
M B Lehane for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES JA: I agree with the reasons of Atkinson J and with the order her Honour proposes.
ATKINSON J: The appellant was tried on the following counts:
Count 1: indecent treatment of a child under 16, under 12, whilst under care;
Count 2: indecent treatment of a child under 16; and
Count 3: indecent treatment of a child under 16.
The appellant was found guilty on 30 July 2009 on counts 1 and 3 and sentenced to 15 months imprisonment with 13 March 2010 fixed as his parole eligibility date. He was found not guilty on count 2. The appellant complains that the verdicts of guilty on counts 1 and 3 are unreasonable and also inconsistent with his acquittal on count 2.
Unreasonable convictions
This ground of appeal relies on s 668E of the Criminal Code 1899 (Qld) which provides, inter alia:
“668E Determination of appeal in ordinary cases
(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and…
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- AGLC
- R v TU [2009] QCA 386
- Case
- [2009] QCA 386
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Criminal Appeal was whether the verdicts were unreasonable or insupportable having regard to the evidence. The court considered whether the jury had a reasonable basis to find the appellant guilty on counts 1 and 3, and whether the acquittal on count 2 was inconsistent with those findings. The court examined the evidence presented at trial, the legal principles applicable to appeals against conviction, and the role of the jury in evaluating the evidence.
The Court of Criminal Appeal found that the jury was entitled to conclude that the appellant had committed the offences on counts 1 and 3. The court found that the evidence was sufficient to support a guilty verdict on both counts, and that the jury's conclusion was not unreasonable or inconsistent with the acquittal on count 2. The court held that the jury was entitled to consider the evidence in relation to each count separately, and that the acquittal on count 2 did not necessarily mean that the appellant was innocent of the other counts. The court found that the appeal against conviction was without merit, and dismissed the appeal.
Orders
Orders of the court
The appeal against conviction is dismissed
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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