R v WAT - [2013] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAT [2013] QCA 251

PARTIES:

R
v
WAT
(appellant)

FILE NO/S:

CA No 33 of 2013
DC No 340 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2013

JUDGES:

Holmes and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed.1.

The appellant’s conviction is set aside and a re-trial is ordered.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of three counts of indecent treatment of a child under the age of 12 who was under his care – where the appellant argued that the complainant’s evidence should not have been accepted because she failed to recall one aspect of the relevant event and failed to make an earlier complaint, because there was a minor discrepancy between her statement and evidence and because there was a motive for the complaint – where the jury was made aware of a possible motive for complaint – where the complainant said that the appellant had warned her not to tell anyone what had happened – whether the matters identified raised significant questions about the complainant’s credibility or reliability – whether on the whole of the evidence, the jury was entitled to accept the complainant’s evidence and be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where at trial, the appellant’s counsel objected to evidence that there was a suspicion another person had dealt with the complainant in some indecent way – where the trial judge agreed to direct the jury that they should have no regard to evidence about another person – where in the end, such direction was not given and no re-direction was sought – whether any miscarriage of justice resulted

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant child gave evidence at a pre-recorded hearing with the presence of a support person, pursuant to s 21AV of the Evidence Act – where the trial judge gave the jury directions concerning the recording of the complainant’s evidence and its playing before them in accordance with s 21AW(2) of the Evidence Act – where the trial judge did not refer to the additional measure of having a support person – where counsel for the respondent Crown accepted that the omission amounted to an error of law, but submitted that no substantial miscarriage of justice had occurred – where the complainant’s evidence was available for the Court’s consideration in recorded form and the evidence of other…

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 WAT

Details

AGLC: R v WAT [2013] QCA 251
Case: [2013] QCA 251
Decision Date: 6 September 2013

CaseChat Overview and Summary

The appellant was convicted of three counts of indecent treatment of a child under the age of 12 who was under his care. The primary legal issue before the court was whether the appellant's conviction was unreasonable or could not be supported having regard to the evidence. The appellant argued that the complainant’s evidence should not have been accepted because she failed to recall one aspect of the relevant event, failed to make an earlier complaint, and because there was a minor discrepancy between her statement and evidence. The appellant also contended that there was a motive for the complaint, and the jury was made aware of a possible motive.

The court considered the arguments and found that the matters identified by the appellant did not raise significant questions about the complainant’s credibility or reliability. The court held that on the whole of the evidence, the jury was entitled to accept the complainant’s evidence and be satisfied beyond reasonable doubt of the appellant’s guilt. The court also found that the trial judge’s failure to direct the jury that they should have no regard to evidence about another person did not result in a miscarriage of justice. The court further found that the trial judge’s failure to refer to the additional measure of having a support person for the complainant did not result in a substantial miscarriage of justice. The court concluded that the appeal should be allowed and the appellant’s conviction set aside. A re-trial is ordered.

The final orders of the court were that the appeal is allowed, the appellant’s conviction is set aside and a re-trial is ordered.

Orders

Orders of the court

The appeal is allowed.1.

The appellant’s conviction is set aside and a re-trial is ordered.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v WAT [2013] QCA 251
PARTIES:	R v WAT (appellant)
FILE NO/S:	CA No 33 of 2013 DC No 340 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2013
JUDGES:	Holmes and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal is allowed.1. The appellant’s conviction is set aside and a re-trial is ordered.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of three counts of indecent treatment of a child under the age of 12 who was under his care – where the appellant argued that the complainant’s evidence should not have been accepted because she failed to recall one aspect of the relevant event and failed to make an earlier complaint, because there was a minor discrepancy between her statement and evidence and because there was a motive for the complaint – where the jury was made aware of a possible motive for complaint – where the complainant said that the appellant had warned her not to tell anyone what had happened – whether the matters identified raised significant questions about the complainant’s credibility or reliability – whether on the whole of the evidence, the jury was entitled to accept the complainant’s evidence and be satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where at trial, the appellant’s counsel objected to evidence that there was a suspicion another person had dealt with the complainant in some indecent way – where the trial judge agreed to direct the jury that they should have no regard to evidence about another person – where in the end, such direction was not given and no re-direction was sought – whether any miscarriage of justice resulted CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant child gave evidence at a pre-recorded hearing with the presence of a support person, pursuant to s 21AV of the Evidence Act – where the trial judge gave the jury directions concerning the recording of the complainant’s evidence and its playing before them in accordance with s 21AW(2) of the Evidence Act – where the trial judge did not refer to the additional measure of having a support person – where counsel for the respondent Crown accepted that the omission amounted to an error of law, but submitted that no substantial miscarriage of justice had occurred – where the complainant’s evidence was available for the Court’s consideration in recorded form and the evidence of other…