R v SDD [2018] OCA 280

In this matter Greg Walsh appeared as Counsel for SDD (Appellant) in the Supreme Court at Queensland, Court of Appeal.

The Court was constituted by Sofronoff P and Gotterson JA and Boddice J.

The Appellant’s appeal arose from his conviction by a jury on counts 5 and 6 relating to viewing the Complainant naked in the shower. He had been acquitted of 11 other counts upon his trial at the District Court at Maryborough, such verdict being determined on 9 February 2018.

Greg Walsh represented the Appellant at trial and also in the appeal to the Supreme Court at Queensland, Court of Appeal. The basis of the appeal against conviction on these counts was that the verdicts were, in all the circumstances, unreasonable and or inconsistent.

Greg Walsh submitted that the verdicts to the jury on counts 5 and 6 are unreasonable on the ground that the Complainant obtain treatment from a psychologist for a significant period of time in respect of sensitive issues but raised no complaint with the psychologist at that time. It was in the context of the end of the marital relationship between the Appellant and the Complainant’s mother which also involved an incident of physical violence involving the Complainant’s brother. It was argued that steps taken by the Appellant and his wife to limit access to the Complainant’s iPhone and internet did not amount to a sexual interest by the Appellant and the Complainant. The Appellant was genuinely concerned for the Complainant’s welfare and he otherwise had a good relationship with her. Further, that in the context of the household, there were practical jokes played on each other by members of the family.

An important issue was that there was an internal lock on the bathroom door and such evidence was given by the Appellant and two other witnesses, as well as the photographs.

It was argued on behalf of the Appellant that the verdicts of not guilty in respect of all the other counts involved a rejection of the Complainant’s credit. As such, the verdicts on counts 5 and 6 were inconsistent with the verdicts of not guilty on the remaining counts.

Boddice J with whom Sofronoff P and Gotterson JA agreed, rejected the contention on behalf of the Appellant that there was an unreasonable verdict of an inconsistent verdict. The Complainant’s account as to the two bathroom incidents, the subject of verdicts of guilty, were supported by the mother’s evidence. His Honour placed particular evidence on there being no context as to counts 5 and 6 as to the playing of a joke by the Appellant on the Complainant.

In respect of inconsistent verdicts, his Honour referred to Holmes J (as the Chief Justice then was ) in R v Smillie [2002] QCA 341 at [28]; (2002) 134 A Crim R 100.

The Court granted leave to adduce the further evidence and the appeal to be dismissed.