CA v The Queen - [2000] WASCA 176

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: "CA" -v- THE QUEEN [2000] WASCA 176

CORAM: KENNEDY J
PIDGEON J
WALLWORK J

HEARD: 3 MARCH 2000

DELIVERED : 30 JUNE 2000

FILE NO/S: CCA 258 of 1999
CCA 259 of 1999

BETWEEN: "CA"
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sexual offences - Evidence - Claim that medical witness gave "radically different" evidence from that contained in her deposition - Claim that her evidence as to published medical research inadmissible - Complaints as to various factual matters, each of which had been drawn to the attention of the jury by the trial Judge - Verdict not unsafe and unsatisfactory

Criminal law and procedure - Sentencing - Sexual offences - One count of carnal knowledge of 5-year-old daughter - Three counts of indecent dealing - Effective sentence of 9 years' imprisonment not interfered with - Individual sentences restructured

Legislation:

Criminal Code (WA), s 689(3), s 693(1)

Evidence Act 1906 (WA) s 72

Result:

Application for leave to appeal against convictions dismissed
To extent to which appeal lay as of right, appeal against convictions dismissed
Appeal against sentences allowed to the extent of restructuring individual sentences

Representation:

Counsel:

Applicant: Mr P J M Sullivan
Respondent: Mr S E Stone

Solicitors:

Applicant: Paul Sullivan
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Borowski v Quayle [1966] VR 382
M v The Queen (1994) 181 CLR 487
Pearce v The Queen (1998) 194 CLR 610
R v Cooksley [1982] Qd R 405
R v H (1980) 3 A Crim R 53
R v Poole (1999) 106 A Crim R 459
R v Reiner (1974) 8 SASR 102
Siganto v The Queen (1998) 73 ALJR 162

Case(s) also cited:

Jeffrey v The Queen [1991] Tas R 336
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998
R v Abadom [1983] 1 All ER 364
R v Lucas, unreported; CCA SCt of WA; Library No 960365; 11 July 1996
R v Podirsky (1989) 43 A Crim R 404
Reid v Kerr (1974) 9 SASR 367
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341

KENNEDY J: The essential facts are set out in the reasons to be published by Wallwork J. Generally for the reasons which his Honour gives, I agree that the applicant's application for leave to appeal against his convictions should be dismissed. To the extent to which his appeal lay as of right, I would dismiss his appeal. I also agree that the applicant's application for leave to appeal against his sentences should be allowed and the sentences restructured as proposed by Wallwork J. I desire, however, to make some brief observations of my own.

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 CA v The Queen

Details

AGLC: CA v The Queen [2000] WASCA 176
Case: [2000] WASCA 176
Decision Date: 30 JUNE 2000

CaseChat Overview and Summary

The appeal was brought by the Crown against the defendant, who had been convicted of one count of carnal knowledge of his five-year-old daughter and three counts of indecent dealing. The appeal centred on the admissibility of certain medical evidence and the appropriateness of the sentence imposed. The case was heard in the Court of Appeal, which reviewed the trial proceedings and the arguments presented by both parties.

The legal issues in the appeal included whether the medical witness had given evidence that was radically different from her deposition, and whether the published medical research she cited was admissible. The Crown also argued that the trial judge had not properly addressed certain factual complaints that had been brought to his attention. The defendant contended that the evidence was properly admitted and that the verdict was safe and satisfactory, and that the sentence was excessive.

The Court of Appeal found that the medical evidence was admissible, and that the trial judge had properly considered the factual complaints and directed the jury accordingly. The court held that the verdict was not unsafe or unsatisfactory, and that the effective sentence of nine years' imprisonment was not inappropriate. The court noted that the individual sentences had been restructured to achieve the overall term of imprisonment, and that there was no basis to interfere with the sentence imposed.

No orders were made by the Court of Appeal, as the appeal was dismissed. The defendant's convictions and sentence were upheld.

Orders