2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland dated 2 June 2017 and in lieu thereof order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's convictions and sentences be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of Queensland
Representation
P J Callaghan SC with D K Fuller for the appellant (instructed by Legal Aid Queensland)
M R Byrne QC for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Collins v The Queen
Criminal law – Appeal against convictions – Jury direction – Prior inconsistent statement – Where appellant indicted for indecent assault, aggravated indecent assault and rape – Where consent main issue at trial – Where complainant made preliminary complaints to mother and others – Where mother gave evidence at committal hearing – Where mother gave different account at trial – Where trial judge directed jury committal evidence could only be used to assess mother's credibility – Where mother confirmed at trial she had given that evidence at committal and her memory was better at committal – Whether mother actually adopted committal evidence – Whether prior inconsistent statement available to jury to assess complainant's credibility – Whether trial judge misdirected jury.
Criminal law – Appeal against convictions – Application of proviso – Where Court of Appeal found erroneous jury direction – Where prosecution disavowed reliance on proviso – Where Court of Appeal applied proviso without notice and notwithstanding disavowal – Whether Court of Appeal bound to put appellant on notice of possibility of applying proviso.
Words and phrases – "preliminary complaint", "prior inconsistent statement", "proviso", "substantial miscarriage of justice".
Criminal Code (Q), ss 337, 349, 352, 668E(1A).
KIEFEL CJ, BELL, KEANE AND GORDON JJ. The appellant was tried before the District Court of Queensland (Judge Farr SC and a jury) on an indictment that charged him with indecent assault[1] (count one), aggravated indecent assault[2] (counts two and three) and rape[3] (count four). The offences were alleged to have been committed against the same complainant on the evening of 11 January or the morning of 12 January 2000. The trial commenced on 27 October 2014. On 30 October 2014 the jury returned verdicts of guilty on each count. The appellant was sentenced to a term of nine years and four months' imprisonment on the conviction for rape, and to shorter concurrent sentences on the remaining convictions.
[1]Criminal Code (Q), s 337; the provision has since been repealed and the offence of indecent assault is found in s 352 of the Code.
[2]Criminal Code (Q), s 337(3); see fn above – 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.
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Details
AGLC
Collins v The Queen [2018] HCA 18
Case
[2018] HCA 18
Decision Date
CaseChat Overview and Summary
In *Collins v The Queen*, the High Court of Australia considered an appeal against convictions for indecent assault, aggravated indecent assault, and rape. The central issue at trial was the complainant's consent. The complainant had made preliminary complaints to her mother and others, and her mother's evidence at the committal hearing differed from her evidence at trial. The trial judge directed the jury that the mother's committal evidence could only be used to assess her credibility.
The High Court was required to determine whether the trial judge had misdirected the jury regarding the use of the mother's prior inconsistent statement. Specifically, the Court had to consider whether the mother had actually adopted her committal evidence at trial and, if so, whether that prior inconsistent statement was available to the jury for assessing the complainant's credibility. The Court also considered the application of the proviso, particularly whether the Court of Appeal was bound to put the appellant on notice of its potential application, especially when the prosecution had disavowed reliance on it.
The High Court reasoned that the trial judge's direction concerning the mother's committal evidence was erroneous. The evidence suggested that the mother had confirmed giving that evidence at the committal hearing and stated her memory was better then, indicating a potential adoption of that evidence. Consequently, the jury should have been permitted to consider the prior inconsistent statement for its truth, not solely for assessing the mother's credibility. The Court found that the erroneous direction constituted a substantial miscarriage of justice, and the parties agreed that given the time elapsed since the alleged offences, a new trial should be ordered rather than remitting the matter to the Court of Appeal.
The appeal was allowed, the order of the Court of Appeal of the Supreme Court of Queensland was set aside, and in lieu thereof, the appellant's appeal to that Court was allowed, his convictions and sentences were quashed, and a new trial was ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland dated 2 June 2017 and in lieu thereof order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's convictions and sentences be quashed; and
(c) a new trial be had.
Background
Background to the litigation
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Evidence
Evidence Before The Court
It is now more than 18 years since the date of the alleged offences. In the circumstances, the parties were agreed that, should the appeal succeed, the matter should not be remitted to the Court of Appeal; this Court should consider for itself whether notwithstanding the misdirection no substantial miscarriage of justice actually occurred. That consideration does not support the conclusion that there has been no substantial miscarriage of justice. It follows that the appeal must be allowed and a new trial ordered[5].[5]Criminal Code (Q), s 669. The evidence The following summary of the evidence is drawn largely from Burns J's reasons in the Court of Appeal. The appellant was aged 61 years at the date of these events and the complainant was aged 19 years. The appellant was living on a yacht moored at a marina in Southport. He placed an advertisement in a newspaper for a nanny to accompany him and his partner and their child on a sailing trip to the Whitsundays. The complainant saw the advertisement and contacted the appellant and expressed her interest in the position. It was agreed that she would attend for an interview the following day. The complainant brought her friend AJ and AJ's young son with her to the interview, which was conducted on board the appellant's yacht. After the interview, the appellant took them to a club and bought them some drinks. Later that evening, the appellant telephoned the complainant and suggested that she return to the yacht and spend some time with him in order to see whether "personality wise" they could live together at sea. She declined to do so at that time. The complainant returned for that purpose about a week later on 11 January 2000. On this occasion, she travelled alone. The appellant collected her by car from the train station and they drove to the marina. On the way they stopped at a hotel where they had "a couple of drinks". After this, they purchased supplies of alcohol and groceries. By the time they arrived at the yacht it was dark. They drank some more alcohol before leaving the yacht to go to dinner at a nearby restaurant. The restaurant was fully booked and they returned to the yacht, where the appellant cooked a meal. They ate, talked and continued drinking. At about 11:00 pm the complainant was feeling a "bit drunk", a "bit tired" and "ready for bed". She knew that she had had enough to drink and that it was "time to stop". She asked the appellant whether she could shower and he directed her to the bathroom adjoining his bedroom. After she had removed all her clothes, the appellant entered the bathroom and took hold of her and pushed her onto the bed, telling her that he wanted to shave her. The complainant protested. The appellant had hold of a pair of electric clippers and he proceeded to shave her pubic area despite her protests, telling her that he would make her look good. This conduct was charged in the first count. After being shaved, the complainant went back to the bathroom and showered. She then returned to the dining area of the yacht, where she and the appellant had "a couple of drinks". The complainant then said that she would like to go to bed. At this point, the appellant "dragged" her to his bedroom. She tried to stop him, saying that she did not want to go with him but he persisted. He removed her pants and pushed her onto the bed. He took off his trousers and straddled her, placing his penis in her mouth. This conduct was charged in the second count. The appellant then pulled the complainant's legs apart and licked her vagina. This conduct was charged in the third count. The complainant continued to protest and tried to close her legs but the appellant "kept pulling them apart". The appellant then penetrated the complainant with his penis. This conduct was charged in the fourth count.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND GORDON JJ
EDELMAN J
(dissent)
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND GORDON JJ,