R v Young - [2017] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v Young [2017] QCA 207

PARTIES:

R
v
YOUNG, Tye Cameron
(appellant)

FILE NO/S:

CA No 266 of 2016
DC No 1209 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 31 August 2016 (Wall QC DCJ)

DELIVERED ON:

19 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2017

JUDGES:

Fraser and Morrison JJA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENCY BETWEEN FINDINGS OF JURY – where the appellant was found guilty of three counts of indecent treatment of a child under 16 – where the appellant was found not-guilty of one count of rape – where the appellant appeals his convictions on the grounds that there has been a miscarriage of justice arising out of inconsistency between the verdicts of guilty relating to the counts of indecent treatment of a child under 16 and his acquittal in relation to the count of rape – whether there is a logical rational basis for the jury having found the appellant guilty of each of the counts of indecent treatment of a child under 16, but not guilty of the count of rape

Criminal Code (Qld), s 93A

R v GAW[2015] QCA 166, cited

COUNSEL:

M A Green for the appellant
T A Fuller QC for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.
MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
BODDICE J: On 30 August 2016, the appellant pleaded not guilty to three counts of indecent treatment of a child under 16 years and one count of rape. All counts related to the one female complainant.
On 31 August 2016, a jury found the appellant guilty of three counts of indecent treatment of a child under 16 years and not guilty of the count of rape.
The appellant appeals his conviction of the counts of indecent treatment of a child under 16 years. The sole ground of appeal is that there has been a miscarriage of justice because the verdicts of guilty are inconsistent with a verdict of acquittal on the count of rape.
Background
The indecent treatment offences were all committed on 9 April 2005. The alleged rape was committed on 17 April 2005. On both occasions the complainant was living with her family at a residence in Narangba. The appellant was also living there. He left that residence on 21 April 2005.
The appellant was born on 25 November 1983. He was aged 21 at the time he committed the offences. The complainant was born on 9 February 1991. She was aged 14 years at the time of the offences.
The…

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 Young

Details

AGLC: R v Young [2017] QCA 207
Case: [2017] QCA 207
Decision Date: 19 September 2017

CaseChat Overview and Summary

The appellant in the case of R v Young appeals his convictions for three counts of indecent treatment of a child under 16, arguing that a miscarriage of justice has occurred due to an inconsistency between these convictions and his acquittal on a count of rape. The court must determine whether there is a logical and rational basis for the jury's decision to find the appellant guilty of the indecent treatment charges but not guilty of the rape charge. This requires an examination of the evidence presented and the jury's reasoning in reaching their verdicts.

The legal issue before the court is whether the jury's verdicts are internally consistent and whether there is a rational basis for finding the appellant guilty of the indecent treatment offences but not guilty of the rape. The court must consider the elements of the offences and the evidence, particularly the complainant's testimony, to assess if the jury's decision can be justified. The court found that the jury accepted the complainant's account of the indecent treatment acts but were not satisfied beyond reasonable doubt regarding the absence of consent in the alleged rape. The court held that there is a logical, rational basis for the jury's decision, as the element of consent distinguishes the rape charge from the indecent treatment charges. The jury's verdicts, therefore, do not indicate a compromise or confusion in their duty.

In conclusion, the court found that the jury's verdicts are not inconsistent and are based on a rational assessment of the evidence. The court dismissed the appeal, upholding the jury's decision. The court's order was that the appeal be dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals his conviction of the counts of indecent treatment of a child under 16 years. The sole ground of appeal is that there has been a miscarriage of justice because the verdicts of guilty are inconsistent with a verdict of acquittal on the count of rape.Background The indecent treatment offences were all committed on 9 April 2005. The alleged rape was committed on 17 April 2005. On both occasions the complainant was living with her family at a residence in Narangba. The appellant was also living there. He left that residence on 21 April 2005. The appellant was born on 25 November 1983. He was aged 21 at the time he committed the offences. The complainant was born on 9 February 1991. She was aged 14 years at the time of the offences. The complainant did not tell her mother of the offending until some days later. In early June 2005, the complainant’s mother took the complainant to the police to make a complaint. A formal investigation commenced on 26 June 2005. The appellant was subsequently charged with the offences. Indictments were presented in the District Court at Brisbane on 4 May 2007. The appellant failed to appear in accordance with his bail undertaking. A warrant was issued but the appellant was not apprehended until late April 2016.Offences The offences of indecent treatment were all committed on the night of 9 April 2005. The first two offences were committed whilst the complainant was lying on the appellant’s bed watching a movie. The appellant gave the complainant a “nipple cripple”. A short time later the appellant slid his hand inside the complainant’s pyjama pants but outside her underwear. The last of those offences was committed later that night whilst the appellant and the complainant were in the kitchen. The appellant grabbed the complainant’s breast through her clothing and squeezed it. The offence of rape was alleged to have been committed on 17 April 2005. Again, the complainant was lying on the appellant’s bed watching movies. The appellant inserted his finger into the complainant’s vagina, moving it in and out for one or two minutes.Complainant’s evidenceSection 93A statement The complainant was interviewed by police for the purposes of a s 93A statement on 26 June 2005. She told police that on the night of 17 April 2005 the appellant “raped me in a way”,[1] with his finger. The rape occurred on a bed in a garage the appellant was sharing with Stewart Warren. Warren was asleep on another bed at that time. The complainant described him as “a pretty deep sleeper”.[2][1]AB 160.[2]AB 161. The complainant said after she had returned from her grandmother’s birthday party she watched movies with the appellant in the garage. They had watched “Millers Crossing” and were half way through “Cruel Intentions 3”. They were both lying down on the bed. The complainant was wearing a green singlet top and blue shorts. The top had a built-in bra. The shorts were loose. The complainant said the appellant initially laid on his side and commenced talking to her. She told him to be quiet as she was trying to watch the movie. The appellant then put his upper body onto her upper body and started kissing her on the mouth. The appellant was occasionally trying to slip in his tongue.

Evidence

Evidence Before The Court

The offence of rape was alleged to have been committed on 17 April 2005. Again, the complainant was lying on the appellant’s bed watching movies. The appellant inserted his finger into the complainant’s vagina, moving it in and out for one or two minutes.Complainant’s evidenceSection 93A statement The complainant was interviewed by police for the purposes of a s 93A statement on 26 June 2005. She told police that on the night of 17 April 2005 the appellant “raped me in a way”,[1] with his finger. The rape occurred on a bed in a garage the appellant was sharing with Stewart Warren. Warren was asleep on another bed at that time. The complainant described him as “a pretty deep sleeper”.[2][1]AB 160.[2]AB 161. The complainant said after she had returned from her grandmother’s birthday party she watched movies with the appellant in the garage. They had watched “Millers Crossing” and were half way through “Cruel Intentions 3”. They were both lying down on the bed. The complainant was wearing a green singlet top and blue shorts. The top had a built-in bra. The shorts were loose. The complainant said the appellant initially laid on his side and commenced talking to her. She told him to be quiet as she was trying to watch the movie. The appellant then put his upper body onto her upper body and started kissing her on the mouth. The appellant was occasionally trying to slip in his tongue. The appellant then held her mouth with one hand so she could not scream. The appellant put his other hand down her shorts, under her underwear. He put his index finger into her vagina. She could not describe how far into her the finger went but said it was inside for a minute or two and it really hurt within a couple of seconds. It continued to hurt for a day or two afterwards. The appellant’s hands were big hands. The complainant said she was trying to push the appellant off but it was impossible as he was “like the four time the size me and mum”. The complainant hit and pushed the appellant until he stopped everything. After one or two minutes, the appellant told her “we’ll keep this a secret”, rolled over and went to sleep. The complainant did not say anything. She cried, went to her room and cried some more. When asked whether she was going to scream the complainant replied “I would have yeah, I was going to, I was tempted to and I was trying to but it couldn’t”.[3][3]AB 166. During the interview, the complainant was asked if the appellant had touched her breasts at all. She replied “about a week before when he tried to the first time and I said no, he did”. The complainant said a week before the rape she had been lying on the floor whilst the appellant was lying on his bed. The appellant told her to get onto the bed. He started to give her “like nipple cripples”.[4] It hurt a lot. The appellant pinched her left nipple for a second through her clothing using his thumb and two fingers. The complainant said “stop it”. She said “that was it, don’t even really think I should have done anything it was just a harmless little nipple cripple”. After the complainant said “stop”, the appellant said “alright” and went and lay on his back waiting for the complainant’s younger brother Corey to come back.[4]AB 171.

Decision

Reasons for decision

Once that conclusion is reached, there is a logical, rational basis for the jury having drawn a distinction between the counts of indecent treatment and the count of rape. The jury accepted the complainant’s account that each of the acts had occurred, but were not satisfied beyond reasonable doubt as to the absence of consent. Only the count of rape had, as an element, consent.Conclusions There is a logical, rational basis for the jury having found the appellant guilty of each of the counts of indecent treatment but not guilty of the count of rape. The different verdicts are not an affront to logic and common sense. They do not suggest a compromise in the performance of the jury’s duty or confusion in the minds of the jury. There is no basis for this Court to intervene in all of the circumstances.Order I would order that the appeal be dismissed

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Young [2017] QCA 207
PARTIES:	R v YOUNG, Tye Cameron (appellant)
FILE NO/S:	CA No 266 of 2016 DC No 1209 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 31 August 2016 (Wall QC DCJ)
DELIVERED ON:	19 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2017
JUDGES:	Fraser and Morrison JJA and Boddice J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENCY BETWEEN FINDINGS OF JURY – where the appellant was found guilty of three counts of indecent treatment of a child under 16 – where the appellant was found not-guilty of one count of rape – where the appellant appeals his convictions on the grounds that there has been a miscarriage of justice arising out of inconsistency between the verdicts of guilty relating to the counts of indecent treatment of a child under 16 and his acquittal in relation to the count of rape – whether there is a logical rational basis for the jury having found the appellant guilty of each of the counts of indecent treatment of a child under 16, but not guilty of the count of rape Criminal Code (Qld), s 93A R v GAW[2015] QCA 166, cited
COUNSEL:	M A Green for the appellant T A Fuller QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent