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R v Miller[2021] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:

R v Miller [2021] QCA 126

PARTIES:

R

v

MILLER, James Currie

(appellant/applicant)

FILE NO/S:

CA No 219 of 2020

DC No 1667 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 15 October 2020 (Clare SC DCJ)

DELIVERED ON:

8 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2021

JUDGES:

Sofronoff P and Morrison JA and Ryan J

ORDERS:

  1. Appeal against conviction dismissed.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of indecent treatment of a child under 16 who was under his care – where the appellant was acquitted on a second count – where the appellant submitted that the complainant was a “significantly unreliable narrator” based on uncertainty in her evidence relating to her age at the time of the offending – where the complainant omitted post-offence contact with the appellant during interview with police – where the appellant contends that preliminary complaint evidence was inconsistent – where the appellant submitted that the unreasonableness of the jury’s verdict was reinforced by the fact that the appellant gave evidence denying the allegations – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE where the applicant was found guilty of one count of indecent treatment of a child under 16 who was under his care – where the applicant was sentenced to imprisonment for 18 months to be suspended after serving nine months with an operational period of three years – where the appellant contended at sentencing for a sentence of nine to 12 months imprisonment – whether the sentence was manifestly excessive

Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited

R v BDM [2021] QCA 108, cited

R v ND [2004] 2 Qd R 307; [2003] QCA 505, cited

R v Oliver [2020] QCA 76, doubted

COUNSEL:

B Power for the appellant/applicant

M T Whitbread for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  The appellant was found guilty of one count of indecent treatment of a child under 16 who was under his care.  He was acquitted on a second count of indecent treatment of the same complainant which he was alleged to have committed three years earlier.  The appellant now appeals against his conviction and seeks leave to appeal against his sentence.
  2. [2]
    The complainant was born on 9 April 1998 in Scotland and the appellant was her stepfather.  In her evidence she said that she emigrated to Australia in 2009 with her mother, the appellant and her younger sister.  After living in a hotel for a period, the family moved to a house in Forest Lake.  The complainant said that she was 12 years old when, one morning, she told her mother that she had grown some pubic hair.  The complainant said that when she went to bed that night the appellant came into her room, pulled down her pants and her underwear and “he felt the hair”.   She said that the appellant “felt the top of my vagina … he only touched it quickly and then pulled … my underwear and my pants back up and left the room.”  This was count 1 on the indictment.  In cross-examination it was put to the complainant, and she agreed, that she had “anchor[ed] her account” by reference to her arrival in Australia in 2009 but, in fact, as became common ground, the family arrived in this country in September 2008.  The complainant said:

“I’m not – I was certain it was 2009.  But, as I said, I’ve not – I’m not very good with dates.  I just remember.”

  1. [3]
    It was put to the complainant that she must have been 10 years old when the family first moved to the house in Forest Lake and that she was unlikely to have developed pubic hair at that age.  The complainant said that she was certain that she was 11 or 12 when the first offence was committed and that this happened at Forest Lake.  On the evidence as it emerged, the offence could not have been committed at the Forest Lake house.
  2. [4]
    According to the complainant, after living at Forest Lake for about a year, the family moved to a different house at Durack.  By reference to a date when the complainant thought that some people who had been living with the family moved out, she said that in about October or November of 2011 the appellant committed the second offence charged on the indictment.  She was asleep in bed and was awoken by somebody touching her vagina.  She gave the following evidence:

“Well, in terms of that address, what is it that you can recall from that day?---So I was asleep in my bed, and I don’t – I didn’t see anyone come into my room.  I didn’t hear anyone come into my room.  I was just awoken by someone touching my vagina and my bum.  And once I finally woke up I felt it and I woke up, and I pulled up my pants.  He – he just – it didn’t – sorry.  Once I pulled up my pants he pulled them back down again and tried to touch it again, and I ---

When you say “It,” what do you mean?---My vagina.  And then he – yeah.  He kept trying to pull them back down, and that went on for a couple of minutes.  Once I couldn’t take any more I got up and I walked to the bathroom.  That’s when I seen him laying in my bed, and I went to the toilet.  I was hoping by the time I got out of the toilet he would have got out of bed, but he didn’t, and I went and laid back in bed.  He didn’t touch me again after I got back into bed though.  And then he laid in there, and then he got up and left.”

  1. [5]
    The prosecutor pressed her for more detail and the complainant gave the following evidence in response:

“You were asleep you told us?---Yeah.

And then what’s your next recollection after that?---Waking up with his hands on my vagina and then touching my bum.

How were you laying?  Were you laying on your back or on your side, for example?---I was laying on my side.

Okay.  And you’re in your bed obviously?---Yes.

And how was he positioned – if you can say so, how was he positioned relative to you?---He was in the spooning position.

Right?---But he wasn’t spooning me as such.  He was just laying on his side.

Okay.  Were your pants – and I use that in a collective way, the pyjama pants and underwear?---Yes.

Were they pulled down before you woke up or after you woke up?---They were already down when I woke up.

Okay.  So you don’t have any memory of them being pulled down?---No, sorry.

Because they were already down?---Yes.

All right.  And you just told me that Mr Miller was behind you in the spooning position?---Yes.

Okay.  Had you seen him at that stage?---No.

Okay.  And then you remember the touching that you’ve described to us?---Yes.

Again, can you make any comment – like I asked you to make in terms of the first allegation, can you make any comment about the way in which the hand felt or any other observations like that?---You could just feel it was a man’s hand.  Just rough, and it was a manly hand.

And what as to the similarity between that and the first occasion?---It felt the same.

Right.  What sort of work did Mr Miller do?---He’s a diesel mechanic.

Right.  Now, you then went on to tell the court how there was some attempts for you to regain your pants back up?---Yes.

So do you know how many times that happened in terms of you pulling them back up and him pulling them back down?---I would say about three or four.

Okay?---It went on for quite a while.

Right.  And what was happening in terms of touching between that?---So at the beginning I just pretended to be asleep because I didn’t know what to do.  So he was just touching my vagina, and then he was touching my bum and just kind of rubbing it.  Just the top of it.  And then – yeah.  So then I – I – once I was – I couldn’t take it any more I pulled my pants up, and he continued to pull them back them down.  And then pulled – I pulled them back up, and it was just back and forth.  He didn’t really get much time to touch me again because I was trying – I was fighting back.

Okay?---And then that’s when I got up and went to the toilet and I seen him laying in my bed.”

  1. [6]
    The complainant disclosed these offences to her horse riding instructor, Ms Janelle Sirret.  Her evidence was that the complainant one day seemed “a bit upset and stuff” and told her that the appellant “had been touching her inappropriately, yeah, when her Mum wasn’t home and that kind of thing”.  She said that the complainant did not go into detail but told her that “he would come and lie in bed with her and touch her inappropriately”.  The complainant had said that she had told Ms Sirret that the first offence was committed when she was developing pubic hair but Ms Sirret had no recollection about that detail.  There was also evidence that the complainant disclosed the matter in similar terms to Ms Linda Woods, a police officer who was a friend of the complainant’s mother.  The complainant’s mother gave evidence and in cross-examination she acknowledged that she had given a statement to police in 2017 in which she had said that the complainant had told her that, in relation to count 1, the appellant “went into her room and tried to pull her pyjama pants down.  He didn’t touch her at that stage.”  In relation to count 2, the mother had told police that the complainant had told her that the appellant had “tried to pull down her pyjama pants and put his hand into her knickers”.  The complainant’s unchallenged evidence was that her relationship with her mother was very bad and that she did not tell her mother immediately about the appellant’s acts because she feared that her mother would not believe her.  She said that her mother “always put men in front of me”.  When she finally did tell her, she said that her mother “was a mess” and that she “didn’t want to know any more at that point”.
  2. [7]
    The defence explored the degree of contact that the complainant had with the appellant after the commission of the offences and what the complainant had told police about that contact.  The investigating police officer, Detective Hayley Munro, accepted, in answer to a question in cross-examination, that “the contact between the complainant and the defendant after she moved out of home and before she complained, was of significance” to the investigation.  Detective Munro said that the complainant had told her about a visit that the appellant had made to the complainant’s workplace; she told Detective Munro that she was frightened of him.  Detective Munro said that this was the only contact related to her by the complainant.
  3. [8]
    In cross-examination the complainant accepted that she had had more contact with the appellant than just this.  They had exchanged Facebook messages and other internet-based messages as well as having face to face meetings.  Some of these interactions were seemingly friendly.   The complainant said that she was not asked by police to relate all of the contact that she had had with the appellant after the offences; nor did Detective Munro say in her own evidence that she had asked for that kind of information.
  4. [9]
    The appellant gave evidence.  His evidence was a blunt denial that he had committed the offences.
  5. [10]
    The appellant expressly conceded at the hearing of the appeal that there were grounds upon which the jury could have distinguished the evidence on count 1 from the evidence on count 2 so that the inconsistent verdicts could not be said to be unreasonable.  The appellant submitted that three aspects of the complainant’s evidence rendered his conviction unreasonable.  First, the complainant’s evidence about her age at “relevant times” was unreliable.  Second, there was the “complainant’s decision not to inform police” about her subsequent contacts with the appellant.  Third, there was “significant inconsistency” in the preliminary complaint evidence.
  6. [11]
    The appellant relied upon the famous dictum in M v The Queen:[1]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

  1. [12]
    The appellant also relied heavily upon the majority decision in R v Oliver.[2]
  2. [13]
    The statement made in M v The Queen has been applied many times and appeals that rely upon this ground have become commonplace in this court.  This is despite the fact that the High Court, as well as intermediate courts of appeal, have emphasised and re-emphasised that “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[3]  For this reason, a court of criminal appeal “is not to substitute trial by an appeal court for trial by jury”.[4]
  3. [14]
    The limited role of a court of criminal appeal to interfere with a jury’s verdict on a factual ground was recognised at the time of the establishment of the Court of Criminal Appeal in the United Kingdom by the Criminal Appeal Act 1907 (UK).  In the first sitting of the new court in 1908, Lord Alverstone, the Lord Chief Justice, said:

“It must be understood that we are not here to re-try the case where there was evidence proper to be left to the jury upon which they could come to the conclusion at which they have arrived.  The appellant must bring himself within the words of section 4(1).[5]  Here there was evidence on both sides, and it is impossible to say that the verdict is one which a jury could not properly have arrived at.”[6]

  1. [15]
    In 1949, Lord Goddard reasserted this principle about the limitations that constitutional factors place upon this ground of appeal:

“Where there is evidence on which a jury can act and there has been a proper direction to the jury this court cannot substitute itself for the jury and re-try the case.  That is not our function.  If we took any other attitude, it would strike at the very root of trial by jury.”[7]

  1. [16]
    In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact.  It is fundamental that it is not sufficient for an appellant merely to show “discrepancies” or “inadequacies” in the evidence or to show that the evidence is “tainted” or “otherwise lacks probative force”.  It is necessary to demonstrate that such features appear in the evidence “in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.[8]
  2. [17]
    In Queensland it has traditionally been overlooked, and undoubtedly forgotten by many, that there is no right of appeal from the decision of a jury on a question of fact or on a question of mixed fact and law.  A person who wishes to appeal on such a ground requires the leave of the Court of Appeal or the certificate of the trial judge that the case is a fit case for appeal.[9]  The latter possibility allows a trial judge, who has directly experienced the trial to act upon any serious doubt about the correctness of a guilty verdict by granting a certificate.  The leave requirement used to be applied in Queensland,[10] and in England it still is.[11]  The statutory requirement to obtain leave, although not currently enforced, demonstrates that one of the premises of s 668E(1) is that an appeal on a question of fact cannot involve an automatic review of a jury verdict by the Court of Appeal as though the appeal was one by way of rehearing.  An appeal is not an occasion to reargue the defence case that was run at trial.
  3. [18]
    An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.[12]
  4. [19]
    The burden upon an appellant who relies upon this ground is heavy and an appellant, by merely asserting the ground, does not force the Crown to prove its case for a second time.
  5. [20]
    Pell v The Queen[13] is a paradigm case in which an appellant was able to discharge this burden.  In that case the appellant argued that the implausibility of two choirboys in their gowns being able to slip away from a procession, find altar wine in an unlocked cupboard and the appellant being able to manoeuvre his vestments to expose his penis, rendered the verdict of guilty unreasonable.  That submission was rejected. The appellant’s success in the appeal was based upon the evidence of a witness who was accepted by both sides as a credible witness and who, in effect, furnished a plausible alibi that was unchallenged. Upon a common assumption between the parties that, having found the appellant guilty, the jury must have found that the complainant was “thoroughly credible and reliable”,[14] the unchallenged evidence of the equally credible alibi witness meant that the jury should have had a doubt about the appellant’s guilt.[15]
  6. [21]
    Fennell v The Queen[16] was another case in which this ground succeeded.  This was a circumstantial case of murder in which each piece of circumstantial evidence was weak.  Ultimately the case hinged upon the jury being satisfied with a piece of crucial evidence about the provenance of the alleged murder weapon, a hammer.  The evidence from two witnesses who claimed that they could recognise this hammer and link it to the appellant was found by the High Court to be “glaringly improbable”.[17]  Without that essential piece of evidence, the case collapsed.
  7. [22]
    The appellant submitted that the complainant’s mistakes about her age at the time of the first alleged offence rendered her a “significantly unreliable narrator”.  As Mr Whitbread for the respondent correctly submitted, this kind of error has no significance in this case, because nothing turned upon the issue of the precise age of the complainant in relation to count 2.  Further, the complainant twice acknowledged that she had a poor memory for dates and what actually mattered was her memory of the actual events involving the appellant’s acts.
  8. [23]
    The appellant submitted that the complainant’s omission to describe comprehensively to police her various post-offence contacts with the appellant should be regarded as an attempt by her to mislead police.  There are two large problems in the way of accepting this submission.  First, the point was not raised at the trial.  It was never put to the complainant and rightly so because there was nothing that could have sustained such an insinuation.  Second, the appellant’s submission that the complainant “could not explain why she had not told police” is unsustainable.  She was never asked to do so and, as emerged at the hearing of the appeal, police never actually asked the complainant to give a full account of her contact with the appellant.  The complainant explained in evidence that she had not told police because she was not asked about that subject and her evidence about this was not challenged.  There is nothing in this argument.
  9. [24]
    The appellant submitted that the complainant’s accounts given by way of preliminary complaint were inconsistent.  The appellant candidly (and correctly) acknowledged[18] that this point would not be sufficient on its own to raise a reasonable doubt.  He submitted that this aspect of the evidence added force to the other submissions.  Having rejected those other submissions, this submission must also, therefore, fail.  However, it should be said, that from whatever perspective this argument is viewed, it could not support the ground of appeal.  Honest witnesses are frequently in error about the details of events.  Also, it is to be expected that any complainant of a sexual assault would approach the task of confiding her story in different ways depending upon the nature of her relationship with the person to whom she is speaking, the circumstances surrounding that conversation, her age at the time of giving the account as well as many other possible factors.  Further, a submission of this kind assumes that the witnesses to whom preliminary complaint was made all gave scrupulously accurate accounts while the complainant’s recollection is to be regarded as suspect where it is in conflict with them.  Such an assumption needs a firm foundation if it is to support this ground of appeal.  There was no such foundation in this case.
  10. [25]
    In oral argument the appellant also submitted that the unreasonableness of the jury’s verdict was “reinforced” by the fact that the appellant gave evidence denying the allegations.  The appellant relied upon R v Oliver[19] in which Callaghan J, with whom Bond J (as his Honour then was) agreed, said:

“The proposition that a conviction was dangerous is fortified by the fact that the appellant gave sworn evidence in his own defence.  There was, to my mind, nothing in that evidence of which fair criticism can be made.”

  1. [26]
    In our respectful opinion, this proposition is contrary to established legal principles and, if it were to be applied, it would lead to serious problems for accused persons when deciding whether to give evidence.
  2. [27]
    Other than in exceptional cases,[20] it is impermissible for a jury to draw an adverse inference from the failure of an accused person to give evidence and, in a sexual case in particular, it is wrong for a jury to be told that it is reasonable to expect an accused to give evidence denying or contradicting the evidence of the complainant.[21]  It is also wrong for a jury to be told that an accused’s election not to give evidence enables the jury to feel more confident in relying upon the prosecution evidence.[22]  This is because a criminal trial is not just adversarial, it is also accusatorial and an accused person has a right to put the Crown to proof without suffering adverse forensic consequences.  For the same reason, the decision of an accused not to give evidence can have no bearing upon the question whether a jury’s verdict was unreasonable.[23]
  3. [28]
    When an accused does elect to give evidence, the jury must be told that, if they accept the accused’s evidence and think that it provides an answer to the prosecution case, they should find the accused not guilty.  If the evidence is not convincing, and the jury is not prepared to accept it as true, but the evidence leaves the jury in doubt about the accused’s guilt, then the jury should also find the accused not guilty.  If the jury thinks that the accused’s evidence should be rejected, then the jury should put that evidence to one side and consider whether or not the prosecution has established guilt beyond a reasonable doubt upon the prosecution evidence.[24]
  4. [29]
    If the accused gives evidence and is found guilty, that verdict necessarily implies that the jury rejected the accused’s evidence as untrue.  The appellant’s evidence can then hardly form a rational basis for a conclusion that the jury’s verdict was unreasonable unless there was something in that evidence which the jury was not entitled to reject.  Pell v The Queen was an example of a case in which a jury’s rejection of the exculpatory evidence of a witness was held to have been unreasonable.[25]  However, that was because in that case the witness’s credit had not been put in issue, because his evidence was plausible and because it furnished an answer to the prosecution case.
  5. [30]
    As McMurdo JA held in R v ND,[26] the fact that an accused has elected to give evidence can give no advantage to an appellant urging the unreasonable verdict ground.
  6. [31]
    Were the law otherwise, serious adverse consequences would follow for accused persons when deciding whether to give evidence.  Although a judge cannot direct a jury that an accused’s failure to give evidence strengthens a prosecution case, as a potential appellant an accused would face a disadvantage on appeal because it could be said that the appellant lacks the advantage of having given evidence.  This would put pressure on an accused person to give evidence at the trial, something that the whole of the established law about the exercise by an accused’s election to give evidence prohibits.[27]
  7. [32]
    Most recently, in R v BDM[28] this Court said:

“As we have said, evidence by an accused which is merely contradictory of the prosecution case does not affect the degree of probative force of the prosecution evidence which is necessary for a jury to convict.  Consequently, the fact that contradictory evidence was given by an accused could not require a jury to acquit where, absent that evidence, they were entitled to convict the accused.  It follows that the fact that an appellant gave evidence does not matter for the determination of an appeal upon this ground.  Were it otherwise, there would remain the mischief, discussed by Kirby J in Dyers, that an accused person might be coerced to give evidence at the trial, lest the prospects of an appeal on this ground might be diminished.”

  1. [33]
    There is another reason why an appellate court cannot use an accused’s election to give evidence in support of a conclusion that a jury’s verdict was unreasonable and it lies in the constitutionally entrenched requirement that an appellate court must not usurp the function of the jury.
  2. [34]
    In the ordinary case, the credit of an accused who gives evidence will be in issue and it is for the jury to determine that question.  It is elementary that the performance of its functions by a court of criminal appeal does not involve the substitution of trial by an appeal court for trial by a jury and so the appeal court is unable to, and should not, seek to duplicate the function of the jury by assessing that a witness was credible.  Indeed, in most cases it is forbidden.[29]  For reasons that are well understood, an appellate court is not in a position to make any assessment about the credibility of an accused person.  This is particularly so when the evidence is substantially constituted by bare denials.  It is true that in M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ observed of the appellant in that case that “an innocent man could have done no more than the accused did in conducting himself as he did during his interview with the police or in giving evidence on oath at his trial”.[30]  It is unnecessary to examine the facts that lay behind the phrase “as he did”.  It is enough to observe that countless sex offenders who are found guilty also give interviews to police and give evidence on oath.
  3. [35]
    For these reasons the appeal should be dismissed.
  4. [36]
    The appellant has also applied for leave to appeal against his sentence.  He was sentenced to imprisonment for 18 months to be suspended after he has served nine months with an operational period of three years. 
  5. [37]
    The appellant was 31 years old at the date of the offence.  He had no criminal history.  He had good employment and was a carer on a part time basis for two men who had muscular dystrophy.  He has two other children whom he was unable to see after being charged.  There will be immigration implications for the appellant.  The complainant was aged 13 years.  He had been her stepfather for the preceding six years.  No discount could be applied for a plea of guilty because there was a committal hearing, a trial and then retrial.  The complainant gave evidence three times.  The learned judge took all of these matters into account.
  6. [38]
    At sentence, the appellant contended for a sentence of nine to 12 months imprisonment.  The prosecution submitted that the appropriate term was 12 to 18 months.
  7. [39]
    The appellant cited several cases[31] which, he submitted, showed that the sentence was manifestly excessive so as to be indicative of error.  A reading of those cases does not support that submission.  It is unnecessary to consider the detail of those decisions.  They range from a case decided in 2005 to four cases decided in 2015.  Their circumstances vary widely, as do the statutory regimes under which they were imposed.  Some cases involved a guilty plea and some did not.  Generally, the degree of seriousness of offending shown in them is similar to the offending in this case.  A consideration of these cases does not demonstrate that the sentence imposed here was beyond the proper exercise of discretion.
  8. [40]
    The application should be refused.

Footnotes

[1](1994) 181 CLR 487 at 494-495 per Mason CJ, Deane, Dawson and Toohey JJ.

[2][2020] QCA 76.

[3] R v Baden-Clay (2016) 258 CLR 308 at [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ.

[4] Ibid at [66].

[5]Which was in terms identical to s 668E(1) of the Code.

[6] R v Williamson (1908) 1 Cr App. R. 3.

[7] R v McGrath [1949] 2 All ER 495 at 497.

[8] M v The Queen, supra, at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[9]Section 668D(1)(b) of the Code.

[10]See eg R v Helton [1939] St R Qd 1 at 6 per Blair CJ.

[11] Archbold: Criminal Pleading, Evidence and Practice 2021, Lucraft, Mark. 2021 ed., 2021, London: Thomson Reuters, at 7-37 to 7-39 and 7-237.

[12] M v The Queen, supra, at 507-508 per Brennan J.

[13][2020] HCA 12.

[14] Ibid at [119] per the Court.

[15] Ibid at [119], [126]-[127] per the Court.

[16][2019] HCA 37.

[17] Supra, at [81] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ.

[18]Appellant’s Outline at [31].

[19][2020] QCA 76 at [89].

[20]Eg, cases such as Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65.

[21] RPS v The Queen (2000) 199 CLR 620 at [34] per Gaudron ACJ, Gummow, Kirby and Hayne JJ.

[22] Ibid at [40].

[23] Dyers v The Queen (2002) 210 CLR 285 at [125] per Callinan J and at [60] per Kirby J.  A contrary view of the Court of Criminal Appeal of New South Wales in Gordon v R (1991) 57 A Crim R 413 at 418 was held to be wrong in Dyers.

[24]There are other possibilities when an accused gives evidence and that evidence is rejected, but they need not be considered, eg, see Baden-Clay v The Queen, supra.

[25]The witness had been called by the Crown but nothing turns on this.

[26][2004] 2 Qd R 307 at 323 (in dissent but not on this point).

[27] cf. per Kirby J in Dyers, supra, at [60].

[28][2021] QCA 108 at [160] per the Court.

[29] Pell v The Queen [2020] HCA 12 at [37] per the Court.

[30] Supra, at 500.

[31] R v KT; Ex parte Attorney-General (Qld) [2007] QCA 340; R v Richie; Ex parte Attorney-General (Qld) [2009] QCA 270; R v BCX [2015] QCA 188; R v BCY [2015] QCA 200.

Close

Editorial Notes

  • Published Case Name:

    R v Miller

  • Shortened Case Name:

    R v Miller

  • MNC:

    [2021] QCA 126

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Ryan J

  • Date:

    08 Jun 2021

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC1667/18 (No citation)15 Oct 2020Date of conviction, having been found guilty by jury at trial, of one count of indecent treatment. The accused gave evidence denying the offence.
Primary JudgmentDC1667/18 (No citation)15 Oct 2020Date of sentence of 18 months' imprisonment suspended after 9 months for 3 years (Clare SC DCJ).
Appeal Determined (QCA)[2021] QCA 12608 Jun 2021Appeal against conviction dismissed; certain asserted weaknesses in evidence did not render jury’s verdict unreasonable; proposition that accused’s sworn denial may strengthen such an argument rejected. Leave to appeal against sentence refused; sentence not manifestly excessive:  Sofronoff P, Morrison JA, Ryan J.

Appeal Status

Appeal Determined (QCA)
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