R v Wales - [2019] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wales [2019] QCA 157

PARTIES:

R
v
WALES, Cornelius
(appellant)

FILE NO/S:

CA No 18 of 2018
DC No 177 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 February 2018 (Jones DCJ)

DELIVERED ON:

20 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2019

JUDGES:

Sofronoff P and Gotterson and Morrison JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a three day trial on three counts of indecent treatment of a child under 12 – where the appellant challenges his convictions on the sole ground that the verdicts were unreasonable and cannot be supported by the evidence – where the appellant’s contentions are centred around the allegations of sexual misconduct and lies which, it is said, the complainant told his mother and doctor – where it was conceded by the complainant that he might be telling lies about some of the events, but not others – where it was submitted that to convict the appellant the jury had to exclude the reasonable hypothesis that the complainant was fabricating the allegations – where the jury could not exclude the reasonable possibility that the complainant felt pressured into making the allegations – where the jury were given appropriate warnings about the need to scrutinise the complainant’s evidence very carefully before they reached a conclusion of guilt – whether the jury’s conclusion of guilt was reasonable, based upon the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

D R Wilson for the appellant
D Balic for the respondent

SOLICITORS:

Guest Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with Morrison JA.
GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: The appellant was convicted after a three day trial on three counts of indecent treatment of a child under 12. The general particulars of the charges were: count 1 - the appellant kissed an eight year old boy on the lips, putting his tongue inside the boy’s mouth; count 2 - the appellant exposed his penis in front of the boy and then masturbated, ejaculating into a toilet; and count 3 - the appellant forced the boy to watch two pornographic movies on the appellant’s iPad.
The appellant challenges his convictions on the sole ground that the verdicts were unreasonable and cannot be supported by the evidence.
Legal principles
The principles governing how this ground of appeal must be approached are not in doubt. In a case where the ground is that…

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 Wales

Details

AGLC: R v Wales [2019] QCA 157
Case: [2019] QCA 157
Decision Date: 20 August 2019

CaseChat Overview and Summary

The case of R v Wales involved an appeal by the appellant against his convictions for three counts of indecent treatment of a child under 12. The trial had taken place over three days, and the appeal was heard in the Queensland Court of Appeal. The appellant's sole contention was that his convictions were unreasonable and could not be supported by the evidence presented at trial.

The primary legal issue before the court was whether the jury's conclusion that the appellant was guilty was reasonable, considering the evidence. The appellant argued that the jury had to exclude the reasonable hypothesis that the complainant was fabricating the allegations or felt pressured into making them. The court was required to make an independent assessment of the evidence and decide if it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

The court examined the complainant's evidence, which included a detailed account of the alleged incidents, including descriptions of the videos watched and the specific acts described. The court noted that the jury had been appropriately warned to scrutinize the complainant's evidence very carefully. After considering the evidence, the court found that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Consequently, the appeal was dismissed.

The court's final orders were that the appeal was dismissed, and the original convictions were upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”[8][2018] QCA 213 at [80].Complainant’s evidence The complainant was about eight years old when he was interviewed by police. The recording of his interview was tendered under s 93A of the Evidence Act 1977 (Qld) and the transcript appears in the appeal book.[9] The complainant told the police that he was there to see them because the appellant had “doing really bad stuff”, which he identified as “sex”.[10] He was asked to explain about the sex and he said that the appellant “was … making me watch videos and I was trying to look and he got my head and made me watch it, but I got loose easily, so I went in my room, locked the door so he couldn’t get in, and I was just on my X-box”.[11] He described the videos as involving naked girls and boys having sex, which he described as “humping each other”.[12] When asked to described what he meant by humping he said, “Like rip their clothes off and going inside her or going and sucking on it”.[13][9]AB 179.[10]AB 181 lines 43-55.[11]AB 182 lines 8-11.[12]AB 182 line 28.[13]AB 182 line 38. Here, as in other places during the interview, the transcript uses “INDISTINCT” to indicate words that were not transcribed, but the actual words can be heard on the video. When asked to describe what it was that was “going inside” the girls, he pointed to his penis, and then when asked what the penis was “going inside” he said “the bum”, which he described as “gross” and it looked “yuck”.[14][14]AB 183. The complainant identified the time of that event[15] as being in the appellant’s apartment the same year as the interview, namely 2015. He was unable to give an address for the apartment, but said it was after they had moved to Brisbane, and near his school. He said that it was downstairs in the house, and he and the appellant were the only ones there.[16] He described the time of day as the morning and it was “all foggy”. He said that he went downstairs and the appellant asked him to come in, but he (the complainant) did not want to do that because “I knew there was gonna be something going on”.[17] When asked how he knew that, he said it was because the appellant “had his iPad and it was on and he was about to click something” which he identified as a “T” symbol.[18] He said he knew that the T means “the bad things … the T means for the sex and that. So once when you press the T, it comes up with naughty pictures”.[19][15]Which corresponded with count 3.[16]AB 189-190.[17]AB 191 line 40.[18]AB 191 lines 44-50.[19]AB 191 lines 50-60.

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 Wales [2019] QCA 157
PARTIES:	R v WALES, Cornelius (appellant)
FILE NO/S:	CA No 18 of 2018 DC No 177 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 8 February 2018 (Jones DCJ)
DELIVERED ON:	20 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2019
JUDGES:	Sofronoff P and Gotterson and Morrison JJA
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a three day trial on three counts of indecent treatment of a child under 12 – where the appellant challenges his convictions on the sole ground that the verdicts were unreasonable and cannot be supported by the evidence – where the appellant’s contentions are centred around the allegations of sexual misconduct and lies which, it is said, the complainant told his mother and doctor – where it was conceded by the complainant that he might be telling lies about some of the events, but not others – where it was submitted that to convict the appellant the jury had to exclude the reasonable hypothesis that the complainant was fabricating the allegations – where the jury could not exclude the reasonable possibility that the complainant felt pressured into making the allegations – where the jury were given appropriate warnings about the need to scrutinise the complainant’s evidence very carefully before they reached a conclusion of guilt – whether the jury’s conclusion of guilt was reasonable, based upon the evidence M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	D R Wilson for the appellant D Balic for the respondent
SOLICITORS:	Guest Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent