R v YD - [2002] QCA 489

SUPREME COURT OF QUEENSLAND

CITATION:

R v YD [2002] QCA 489

PARTIES:

R
v
YD
(appellant)

FILE NO/S:

CA No 186 of 2002
DC No 95 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2002

JUDGES:

Davies JA, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted; term of imprisonment of 18 months set aside; substituted sentence of 12 months to be suspended after six months with an operational period of two years.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – PRACTICE AND PROCEDURE – where appellant convicted of one count of indecent dealing with child under age of 12 with a circumstance of aggravation – where appellant sentenced to 18 months imprisonment – whether sentence was excessive

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – COMPETENCE AND COMPELLABILITY – CHILDREN – GENERALLY – where evidence given by six year old complainant – whether evidence led to an unsafe and unsatisfactory verdict – whether the learned trial judge should have issued a warning to the jury about the evidence of the complainant

Evidence Act 1977 (Qld), s 93A
Criminal CodeAct 1899 (Qld), s 632

R v GA [1999] QCA 9; CA No 417 of 1998, 4 February 1999, considered
R v Hill[1995] QCA 450; CA No 303 of 1995, 5 September 1995, considered
R v N [2001] QCA 70; CA No 215 of 2000, 6 March 2001, considered
R v Pham[1996] QCA 3; CA No 435 of 1995, 6 February 1996, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, referred to

COUNSEL:

K M McGinness for the appellant
B G Campbell for the respondent

SOLICITORS:

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

DAVIES JA: I agree with the reasons for judgment of Cullinane J and with the orders he proposes.

CULLINANE J: The appellant appeals against his conviction in the District Court at Brisbane on 21 May 2002 on one count of indecent dealing with a child under the age of 12 years. He also seeks leave to appeal against the sentence imposed of eighteen months imprisonment.

The appellant is the grandfather of the complainant who was born in October 1995. She was thus a little over five years at the time of the offence which was alleged to have been committed on 17 February 2001.

The complainant’s mother is the daughter of the appellant.

The appellant advances two grounds of appeal against his conviction. The first is that the conviction is unsafe and unsatisfactory and the second is that the learned trial judge erred in…

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 YD

Details

AGLC: R v YD [2002] QCA 489
Case: [2002] QCA 489
Decision Date: 15 November 2002

CaseChat Overview and Summary

The appellant, YD, appealed against his conviction for one count of indecent dealing with a child under the age of 12, along with a circumstance of aggravation. The appeal also contested the severity of the 18-month imprisonment sentence imposed by the court. The case was heard in the court of appeal. The fundamental legal questions before the court were whether the sentence imposed on the appellant was excessively harsh and whether the trial judge should have cautioned the jury regarding the evidence provided by the child complainant, who was only six years old at the time of the offence.

The court examined the sentence imposed on the appellant and found that, while the offence was serious, the 18-month imprisonment term was indeed excessive. The court noted that the circumstances of the case warranted a more lenient sentence. Additionally, the court concluded that the trial judge should have warned the jury about the potential unreliability of the child complainant's evidence due to her young age. However, the court held that this error did not lead to an unsafe and unsatisfactory verdict, and thus did not warrant a new trial.

Consequently, the appeal against the conviction was dismissed. The court did, however, grant the appellant leave to appeal against the sentence. The term of imprisonment of 18 months was set aside and replaced with a sentence of 12 months, to be suspended after serving six months, with an operational period of two years.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted; term of imprisonment of 18 months set aside; substituted sentence of 12 months to be suspended after six months with an operational period of two years.

Background

Background to the litigation

Full text does not contain this section.

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 YD [2002] QCA 489
PARTIES:	R v YD (appellant)
FILE NO/S:	CA No 186 of 2002 DC No 95 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2002
JUDGES:	Davies JA, Cullinane and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted; term of imprisonment of 18 months set aside; substituted sentence of 12 months to be suspended after six months with an operational period of two years.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – BUGGERY AND INDECENT ASSAULT OR DEALING – PRACTICE AND PROCEDURE – where appellant convicted of one count of indecent dealing with child under age of 12 with a circumstance of aggravation – where appellant sentenced to 18 months imprisonment – whether sentence was excessive CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – COMPETENCE AND COMPELLABILITY – CHILDREN – GENERALLY – where evidence given by six year old complainant – whether evidence led to an unsafe and unsatisfactory verdict – whether the learned trial judge should have issued a warning to the jury about the evidence of the complainant Evidence Act 1977 (Qld), s 93A Criminal CodeAct 1899 (Qld), s 632 R v GA [1999] QCA 9; CA No 417 of 1998, 4 February 1999, considered R v Hill[1995] QCA 450; CA No 303 of 1995, 5 September 1995, considered R v N [2001] QCA 70; CA No 215 of 2000, 6 March 2001, considered R v Pham[1996] QCA 3; CA No 435 of 1995, 6 February 1996, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, referred to
COUNSEL:	K M McGinness for the appellant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent