R v TU - [2009] QCA 386

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 2009

DIVISION:

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 made

ORDER:

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, considered

COUNSEL:

C Reid for the appellant
M B Lehane for the respondent

SOLICITORS:

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…

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 TU

Details

AGLC: R v TU [2009] QCA 386
Case: [2009] QCA 386
Decision Date: 15 December 2009

CaseChat Overview and Summary

The appellant, TU, was found guilty by a jury in the Supreme Court of South Australia of one count of indecent treatment of a child under 16 under 12 while under his care and one count of indecent treatment of a child under 16. He appealed against his conviction to the Court of Criminal Appeal of South Australia. He argued that the verdicts of guilty on counts 1 and 3 were unreasonable and inconsistent with his acquittal on count 2. The appeal was dismissed.

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

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 TU [2009] QCA 386
PARTIES:	R v TU (appellant)
FILE NO/S:	CA No 218 of 2009 DC No 376 of 2009
DIVISION:	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 made
ORDER:	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, considered
COUNSEL:	C Reid for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent