GAX v The Queen [2017] HCA 25: Indecent Dealings with a Minor

Today (21 June 2017) the High Court has unanimously allowed an appeal in the case of GAX v The Queen [2017] HCA 25. The Full Court allowed the appeal and set aside the conviction and entered a verdict of acquittal for the appellant, holding that count three of a series of offences relating to indecent dealings with a minor was not proven beyond reasonable doubt.

Facts of the Case

The appellant was accused of indecently touching a child, between 11 and 14 July 2002, and the first complaint regarding the event was made in November 2013. The complainant alleged that the appellant had engaged in this behaviour for a number of years prior, but was caught in the act by the complainant’s mother eventually, which was particularised in count three. The mother provided evidence of count three and was able to date this incident by reference to a calendar entry, but the complainant’s evidence of count three was vague. The particulars of this incident asserted that the appellant touched the complainant on that occasion ‘on or near the vagina’.

Appeals

Initially the appellant had been tried in the District Court of Queensland on an indictment of indecent dealing with a child, and was convicted on count three. He was acquitted of counts one and two. However the appellant appealed against this conviction, arguing that this verdict was unreasonable as rationally it was inconsistent with the acquittals on the first two counts. The Court of Appeal found that the quality of evidence provided for the purposes of count three supported the conviction on count thee and acquittal on the first two counts. However, McMurdo P was in dissent, arguing that the evidence was not sufficient to prove beyond reasonable doubt that the appellant had indecently touched the complainant. The appellant received a grant of special leave to appeal to the High Court.

High Court Decision

The question that was to be considered at appeal was whether the verdict of acquittal on two counts and conviction on one was an unreasonable verdict. It was accepted that the appellant was discovered in bed with the complainant on the occasion specified in count three. However, the Full Court found that the complainant’s evidence of the event did not allow an inference of touching on or near the vagina beyond reasonable doubt. The court noted that the complainant’s memory of the incident was unclear and vague, and she was unable to provide many details as she noted she ‘was asleep before and ended up finding out what happened.’ The court contended that there was a real possibility that the evidence of the complainant may have been a reconstruction, and could not be proven beyond reasonable doubt.

The High Court set aside the order of the Court of Appeal of the Supreme Court of Queensland. An order to quash the conviction on count three was also handed down, and the complainant was acquitted on count three. 

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GAX v The Queen [2017] HCA 25, and Judgment Summary