R v WAB - [2008] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAB [2008] QCA 107

PARTIES:

R
v
WAB
(appellant)

FILE NO/S:

CA No 241 of 2007
DC No 3287 No of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2008

JUDGES:

Keane and Fraser JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – where the trial judge allowed the admission of unparticularised evidence of uncharged acts of unlawful sexual activity by the appellant against the
complainant – where the evidence was uncorroborated – where the trial judge directed the jury as to the dangers of such evidence and the need to scrutinise it with real care – whether such evidence was properly put to the jury as evidence that may be relied upon in establishing a contravention of s 229B(1) of the Criminal Code Act 1899 (Qld)

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 on one charge of maintaining a sexual relationship with a child under 16 years and acquitted on two counts of the rape of the same
child – whether the conviction on the maintaining count is inconsistent and irreconcilable with the acquittals on the rape counts

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt

Criminal Code Act 1899 (Qld), s 229B

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied

COUNSEL:

C A Cuthbert for the appellant
M J Copley for the respondent

SOLICITORS:

O'Sullivans for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 13 September 2007 the appellant was convicted upon the verdict of a jury of one count of maintaining an unlawful sexual relationship with a child under the age of 16 years. He was also convicted of one count of assaulting the same child. He was acquitted of two counts of digital rape.

The appellant was sentenced to three years imprisonment for the offence of maintaining an unlawful sexual relationship. He was sentenced to a concurrent term of three months imprisonment for the assault.

The appellant…

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 WAB

Details

AGLC: R v WAB [2008] QCA 107
Case: [2008] QCA 107
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant against his conviction of maintaining a sexual relationship with a child under 16 years, while being acquitted on two counts of the rape of the same child. The court was tasked with determining whether the evidence of uncharged acts of unlawful sexual activity was properly put to the jury and whether the appellant's conviction was inconsistent and irreconcilable with the acquittals on the rape counts. The appellant argued that the trial judge's directions to the jury were insufficient to counter the prejudicial effect of the uncorroborated evidence.

The court considered whether the admission of unparticularised evidence of uncharged acts was an error and whether it was properly put to the jury as evidence that may be relied upon in establishing a contravention of s 229B(1) of the Criminal Code Act 1899 (Qld). The court found that the trial judge had directed the jury as to the dangers of such evidence and the need to scrutinise it with real care. The court held that the trial judge's directions were sufficient to counter any prejudicial effect and that the evidence was properly put to the jury. The court also examined whether the conviction on the maintaining count was inconsistent and irreconcilable with the acquittals on the rape counts and found that it was not.

In reaching its decision, the court considered the whole of the evidence presented at trial and found that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the maintaining count. The court dismissed the appeal and upheld the conviction. The court found that the jury's verdict was not unreasonable or unsustainable on the evidence presented. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal 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 WAB [2008] QCA 107
PARTIES:	R v WAB (appellant)
FILE NO/S:	CA No 241 of 2007 DC No 3287 No of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2008
JUDGES:	Keane and Fraser JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – where the trial judge allowed the admission of unparticularised evidence of uncharged acts of unlawful sexual activity by the appellant against the complainant – where the evidence was uncorroborated – where the trial judge directed the jury as to the dangers of such evidence and the need to scrutinise it with real care – whether such evidence was properly put to the jury as evidence that may be relied upon in establishing a contravention of s 229B(1) of the Criminal Code Act 1899 (Qld) 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 on one charge of maintaining a sexual relationship with a child under 16 years and acquitted on two counts of the rape of the same child – whether the conviction on the maintaining count is inconsistent and irreconcilable with the acquittals on the rape counts CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt Criminal Code Act 1899 (Qld), s 229B M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
COUNSEL:	C A Cuthbert for the appellant M J Copley for the respondent
SOLICITORS:	O'Sullivans for the appellant Director of Public Prosecutions (Queensland) for the respondent