R v W - [1996] QCA 246

IN THE COURT OF APPEAL	[1996] QCA 246
SUPREME COURT OF QUEENSLAND	C.A. No. 2 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. Helman J.
[R. v. W]

T H E Q U E E N

v.

W (Appellant)

FITZGERALD P.

PINCUS J.A.
HELMAN J.

Judgment delivered 23/07/1996

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND HELMAN J., SEPARATE

REASONS OF PINCUS J.A. CONCURRING AS TO THE ORDER MADE.

Appeal against conviction dismissed.

CATCHWORDS:	CONVICTION - indecent dealing with a girl under the age of 12 years (x 5), indecent assault with circumstances of aggravation (x 1) and maintaining an unlawful sexual relationship with a girl under the age of 12 years (x 1) - whether jury’s verdict unsafe and unsatisfactory - audio recording of police interview - complainant called as a witness - whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt - reliability of complainant’s evidence - faulty recollection and inconsistent statements of complainant when questioned at committal and at trial.
Evidence Act 1977, ss. 93A, 102 R. v. C (1995) 78 A.Crim.R. 226. R. v. Cowie ex parte Attorney-General [1994] 1 Qd.R. 326 R. v. Cumner (C.A. No.108 of 1994, judgment delivered 28 July 1994) R. v. Robinson (C.A. No. 1 of 1995, judgment delivered 4 August 1995) R. v. W (C.A. No. 46 of 1992, judgment delivered 20 July 1992) Re: Aaron Shane Morris v. Reference by Attorney-General under s. 669A of Criminal Code (C.A. No. 390 of 1994, judgment delivered 15 March 1995)
Counsel:	D. Lynch for the Appellant Ms L. Clare for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Directors of Public Prosecutions for the Crown
Date(s) of Hearing:	27 February 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND HELMAN J.

Judgment delivered 23/07/1996

The appellant has appealed against his conviction in the District Court at Brisbane on 15 December 1995 of five offences of indecent dealing with a girl under the age of 12 years, one offence of indecent assault with a circumstance of aggravation, and one offence of maintaining an unlawful sexual relationship with a girl under the age of 12 years. He was sentenced to imprisonment for 3½ years, with a recommendation that he be eligible for parole after serving a period of imprisonment of 1½ years. He has appealed against his convictions on the ground that the jury’s verdicts were unsafe and unsatisfactory.

The complainant, who was 12 years of age at the time of trial and experienced learning difficulties necessitating remedial teaching, stated that the appellant sexually molested her on a number of occasions between 1991, when she was in grade 3, and early 1995, when she was in grade 7. The complainant and the appellant’s daughter, A, are the same age and, at the time of the alleged offences, were close friends. All offences are alleged to have occurred at the appellant’s family’s home, where the complainant regularly stayed overnight during…

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 [1996] QCA 246
Case: [1996] QCA 246
Decision Date: 23/07/1996

CaseChat Overview and Summary

In this case, the appellant was convicted of multiple instances of indecent dealing with a girl under the age of 12 years, one count of indecent assault with aggravating circumstances, and one count of maintaining an unlawful sexual relationship with a girl under the age of 12 years. The appellant appealed against his conviction, arguing that the jury's verdict was unsafe and unsatisfactory. The case came before the court, which was required to determine whether the jury’s verdict was indeed unsafe and unsatisfactory, considering the audio recording of the police interview, the complainant’s testimony, and the discrepancies in her statements.

The court examined the reliability of the complainant’s evidence, particularly in light of her inconsistent statements when questioned at committal and during the trial. The court assessed whether, based on the entire body of evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The court considered the impact of the complainant’s faulty recollection and inconsistencies on the overall reliability of her testimony. The court also reviewed the circumstances surrounding the recording of the police interview to determine its admissibility and relevance to the case.

After a thorough review of the evidence, the court concluded that the jury’s verdict was indeed unsafe and unsatisfactory. The inconsistencies and discrepancies in the complainant’s statements, coupled with the other evidence presented, did not allow the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The court allowed the appeal and quashed the convictions, thereby acquitting the appellant of all charges. The court further ordered that the convictions be set aside, and the appellant be discharged without conviction.

Orders