R v W - [2002] QCA 288

SUPREME COURT OF QUEENSLAND

CITATION:

R v W [2002] QCA 288

PARTIES:

R
v
W
(appellant)

FILE NO/S:

CA No 71 of 2002
DC No 43 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2002

JUDGES:

Davies and McPherson JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULTS - PRACTICE AND PROCEDURE - where appellant convicted of two counts of indecent dealing with a child under 16 - where the child was under the appellant's care - whether the verdict was unsafe and unsatisfactory - whether the trial judge erred in his direction to the jury

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant convicted of two counts of indecent dealing with a child under 16 - where offences occurred when complainant was 13 or 14 and 15 years of age - where complainant was 27 years of age at the trial - where inconsistencies in complainant's statements - whether the jury should have had a reasonable doubt about the complainant's credibility

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - where appellant convicted of two counts of indecent dealing with a child under 16 - where complainant gave evidence of uncharged sexual misconduct by the appellant - whether the learned trial judge erred in his direction with respect to uncharged acts

BRS v The Queen (1997) 71 ALJR 1512, considered

R v D [2001] QCA 256; CA No 16 of 2001, 29 June 2001, distinguished

R v W [1998] 2 QdR 531, considered

T (1996) 86 A Crim R 293, considered

COUNSEL:

K M McGinness for appellant
S G Bain for respondent

SOLICITORS:

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

DAVIES JA: The appellant was convicted after a trial in the District Court at Kingaroy on 11 February this year on two counts of indecent dealing with a child under 16 with a circumstance of aggravation. That circumstance, in each case, was that the child, his stepdaughter, was under his care. The first of these convictions was alternative to a count of rape between 1 September 1988 and 31 December 1991 of which he was acquitted. The second was on a count of indecent dealing with a circumstance of aggravation also between 1 September 1988 and 31 December 1991.

The appellant appeals against those convictions. It should be added that he was originally indicted,…

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 W

Details

AGLC: R v W [2002] QCA 288
Case: [2002] QCA 288
Decision Date: 9 August 2002

CaseChat Overview and Summary

The appellant, W, was convicted by a jury in the District Court of Queensland of two counts of indecent dealing with a child under 16 years. The offences occurred when the complainant was aged 13 or 14 and 15 years. The complainant was 27 years old at the time of the trial. The appellant appealed against the conviction, arguing that the verdict was unreasonable or unsatisfactory, and that the trial judge had erred in his direction to the jury.

The primary issues before the court were whether the jury should have had reasonable doubt about the complainant's credibility due to inconsistencies in her statements, and whether the trial judge erred in his direction to the jury concerning uncharged acts of misconduct by the appellant. The appellant argued that the trial judge's directions did not sufficiently guide the jury on the assessment of the complainant's credibility and the relevance of uncharged acts.

The court examined the evidence and concluded that the jury was properly directed and that the verdict was not unreasonable or unsatisfactory. The court found that the inconsistencies in the complainant's statements did not undermine the overall reliability of her testimony. Regarding the trial judge's direction on uncharged acts, the court held that the summing up, when considered as a whole, was adequate. The court further noted that the trial judge had cautioned the jury about the dangers of convicting on uncharged acts and had directed the jury to consider whether the acts, if proved, were so similar to the charged offences as to make it unsafe to convict on the basis of the uncharged acts alone.

The appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

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 W [2002] QCA 288
PARTIES:	R v W (appellant)
FILE NO/S:	CA No 71 of 2002 DC No 43 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Kingaroy
DELIVERED ON:	9 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2002
JUDGES:	Davies and McPherson JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULTS - PRACTICE AND PROCEDURE - where appellant convicted of two counts of indecent dealing with a child under 16 - where the child was under the appellant's care - whether the verdict was unsafe and unsatisfactory - whether the trial judge erred in his direction to the jury CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant convicted of two counts of indecent dealing with a child under 16 - where offences occurred when complainant was 13 or 14 and 15 years of age - where complainant was 27 years of age at the trial - where inconsistencies in complainant's statements - whether the jury should have had a reasonable doubt about the complainant's credibility CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - where appellant convicted of two counts of indecent dealing with a child under 16 - where complainant gave evidence of uncharged sexual misconduct by the appellant - whether the learned trial judge erred in his direction with respect to uncharged acts BRS v The Queen (1997) 71 ALJR 1512, considered R v D [2001] QCA 256; CA No 16 of 2001, 29 June 2001, distinguished R v W [1998] 2 QdR 531, considered T (1996) 86 A Crim R 293, considered
COUNSEL:	K M McGinness for appellant S G Bain for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent