R v UB - [2007] QCA 374

SUPREME COURT OF QUEENSLAND

CITATION:

R v UB [2007] QCA 374

PARTIES:

R
v
UB
(appellant)

FILE NO/S:

CA No 174 of 2007
DC No 154 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 23 October 2007
Reasons delivered on 2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2007

JUDGES:

Williams and Keane JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was charged with one count of maintaining an unlawful sexual relationship with a child under 16 with a circumstance of aggravation, six counts of indecent treatment of a child under 12 in care, one count of rape and two counts of indecent treatment of a child under 16 in care – where the appellant was found guilty by a jury of all counts – where general evidence given by the complainant at trial of sexual offending on a regular basis by the appellant was admitted as evidence of uncharged acts – where the trial judge in summing up did not include in directions to the jury any warning against propensity reasoning in relation to the evidence of the uncharged acts – where the trial judge directed the jury that if they had a doubt about the specific offences then they should only convict the accused on the basis of the uncharged acts – whether the trial judge’s directions to the jury as to the permissible use of the evidence of the uncharged acts were inadequate and wrong in law

Evidence Act 1977 (Qld), s 93A

KRM v R (2001) 206 CLR 221, considered
R v WO[2006] QCA 21; CA No 224 of 2005, 10 February 2006, considered

COUNSEL:

S J Hamlyn-Harris for the appellant
B G Campbell for the respondent

SOLICITORS:

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

WILLIAMS JA: I agree with the reasons of Philippides J.

KEANE JA: I agree with Philippides J.

PHILIPPIDES J: On 30 July 2007 the appellant was convicted after a trial by jury of one count of maintaining an unlawful sexual relationship with a child under 16 with a circumstance of aggravation (count 1), six counts of indecent treatment of a child under 12 in care (counts 2, 3, 4, 5, 6 and 8), one count of rape (count 7) and two counts of indecent treatment of a child under 16 in care (counts 9 and 10). On the charge of maintaining an unlawful relationship which related to the period from 15 June 1997 to 25 March 2005, the appellant was sentenced to six years’ imprisonment. On the count of rape, he was…

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 UB

Details

AGLC: R v UB [2007] QCA 374
Case: [2007] QCA 374
Decision Date: 2 November 2007

CaseChat Overview and Summary

The case of R v UB involved the appellant being charged with a series of serious sexual offences against children. These included maintaining an unlawful sexual relationship with a child under 16, indecent treatment of children under 12 in care, rape, and indecent treatment of children under 16 in care. After a trial, the appellant was found guilty by a jury on all counts. The primary legal issue before the court was whether the trial judge's directions to the jury concerning the admissibility and use of evidence of uncharged sexual acts were inadequate and erroneous. Specifically, the court examined whether the trial judge should have included a warning against propensity reasoning regarding this evidence and whether the directions led the jury to potentially convict the appellant based on the uncharged acts if they had doubts about the specific offences.

The court held that the trial judge's directions to the jury were indeed inadequate and wrong in law. The judge failed to include any warning against propensity reasoning regarding the evidence of the uncharged acts. Furthermore, the judge's direction that if the jury had any doubt about the specific offences, they should convict the appellant based on the uncharged acts, was problematic. This direction risked leading the jury to convict the appellant on the basis of the uncharged acts rather than the charged offences. The court found that these errors could have materially affected the outcome of the trial. As a result, the court concluded that the directions to the jury were inadequate and led to a miscarriage of justice. The appeal was allowed, and the convictions were quashed.

Orders