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Colquhoun v The Queen (No 1)

Colquhoun v The Queen (No 1)

Case [2013] NSWCCA 190 22 August 2013

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Court of Criminal Appeal

New South Wales

Case Title: Colquhoun v R (No 1)

Medium Neutral Citation: [2013] NSWCCA 190

Hearing Date(s): 10 May 2013

Decision Date: 22 August 2013

Before: Macfarlan JA at [1]
Fullerton J at [65]
Adamson J at [66]

Decision:
(1) Grant leave under r 4 of Criminal Appeal Rules to rely on Appeal Ground 1.

(2) Allow the appeal.

(3) Quash the appellant's convictions entered following the return of verdicts of guilty at his trial in February 2009.

(4) Direct a new trial of the charges upon which the appellant was convicted.

(5) Dismiss the appellant's applications for examination of witnesses filed on 18 January 2013 insofar as they relate to the present proceedings.

Catchwords: CRIMINAL LAW - indecent assault of person under the age of 16 - evidence showing sexual interest of accused in complainant - requirement for use as tendency evidence not satisfied - jury invited to use evidence for impermissible tendency reasoning - convictions quashed

CRIMINAL LAW - indecent assault of person under the age of 16 - adequacy of directions to jury concerning a motive to lie on the part of the complainant and his mother

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995

Cases Cited: BBH v R [2012] HCA 9; 245 CLR 499
Colquhoun v R (No 2) [2013] NSWCCA 191
Doe v R [2008] NSWCCA 203
ES v R (No 1) [2010] NSWCCA 197
ES v R (No 2) [2010] NSWCCA 198
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232
House v The King [1936] HCA 4; 55 CLR 499
Libke v The Queen [2007] HCA 30; 230 CLR 559
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 462
R v AH (1999) 42 NSWLR 702
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
RWC v R [2010] NSWCCA 332
Steadman v R (No 1) [2013] NSWCCA 55
Toalepai v R [2009] NSWCCA 270
TWL v R [2012] NSWCCA 57
TWL v R (No 2) [2012] NSWCCA 93

Category: Principal judgment

Parties: Richard Colquhoun (Appellant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Self-represented Appellant
S Dowling (Respondent)

- Solicitors: Solicitors:
Self-represented Appellant
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/876; 2008/1282

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Lakatos DCJ and jury

- Date of Decision: 25 February 2009

- Citation: R v Richard Kenneth Colquhoun

- Court File Number(s): 2008/876; 2008/1282

JUDGMENT

MACFARLAN JA: In February 2009 the appellant stood trial in the District Court before a judge and jury charged with the following offences:
(1) One count of an aggravated act of indecency with a person under the age of 16 years (aged 11 years) contrary to s 61O of the Crimes Act 1900, the circumstance of aggravation being that the child was under the appellant's authority.
(2) Two counts…

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 Colquhoun v The Queen (No 1)

Details

AGLC: Colquhoun v The Queen (No 1) [2013] NSWCCA 190
Case: [2013] NSWCCA 190
Decision Date: 22 August 2013

CaseChat Overview and Summary

In this case, the appellant was convicted of two counts of indecent assault of a child under the age of 16. The appellant appealed against the conviction on the grounds that the trial judge misdirected the jury on the use of evidence concerning a tendency to commit indecent assaults and on the adequacy of directions to the jury concerning a motive to lie on the part of the complainant and his mother. The appeal was heard in the High Court of Australia. The court was required to determine whether the trial judge had properly directed the jury on the use of tendency evidence and whether the directions given regarding the motive to lie were adequate.

The court held that the trial judge had not properly directed the jury on the use of tendency evidence. The evidence in question did not satisfy the requirement that the probative value of the evidence outweigh any prejudicial effect. The court found that the trial judge had invited the jury to use the evidence for impermissible tendency reasoning, which led to a miscarriage of justice. Consequently, the convictions were quashed. The court also examined the adequacy of the directions given to the jury concerning the motive to lie. The court concluded that the directions were adequate and did not contribute to the miscarriage of justice.

The High Court allowed the appeal and quashed the convictions. The court ordered a retrial on the charges. The court emphasised the importance of proper jury directions in criminal trials, particularly in relation to tendency evidence and motives to lie. The court underscored the need for trial judges to carefully consider the admissibility and use of such evidence to ensure a fair trial for the accused.

Orders