Colquhoun v The Queen (No 2) - [2013] NSWCCA 191

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Colquhoun v R (No 2) [2013] NSWCCA 191
Hearing dates: 10 May 2013
Decision date: 22 August 2013
Before: Macfarlan JA at [1]
Fullerton J at [40]
Adamson J at [41]
Decision:
(1) Grant leave under r 4 of the Criminal Appeal Rules to rely on Appeal Grounds 1 and 2.
(2) Allow the appeal.
(3) Quash the appellant's convictions entered following the return of verdicts of guilty at his trial in May 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
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Cases Cited: Colquhoun v R (No 1) [2013] NSWCCA 190
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232
Libke v R [2007] HCA 30; 230 CLR 559
Norman v R [2012] NSWCCA 230
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
Steadman v R (No 1) [2013] NSWCCA 55
Category: Principal judgment
Parties: Richard Colquhoun (Appellant)
Regina (Respondent)
Representation: Counsel:
Self-represented Appellant
S Dowling (Respondent)
Solicitors:
Self-represented Appellant
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/16107
Decision under appeal

Jurisdiction:

9101

Citation:

R v Richard Kenneth Colquhoun

Date of Decision:

2009-05-28 00:00:00

Before:

Goldring DCJ and jury

File Number(s):

2008/16107

Judgment

MACFARLAN JA: In May 2009 the appellant stood trial in the District Court before a judge and jury on five charges of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900. The circumstance of aggravation relied upon was that the alleged victim of the assaults was under the age of 16 years, being then aged 13. The jury returned a verdict of guilty on Counts 1, 4, and 5 and not guilty on Count 2. It was unable to reach a verdict on count 3. The appellant has appealed against his convictions but not against the sentence that was subsequently imposed.

Whilst represented by counsel, the appellant appealed on the following three grounds:

"1. A miscarriage of justice occurred as a result of the admission and/or use of evidence of sexual interest of the appellant.

2. The trial judge misdirected the jury with respect to the use of evidence of uncharged conduct.

3. A miscarriage of justice occurred as a result of the Crown Prosecutor's cross-examination of the appellant with respect to the truthfulness of evidence of other witnesses in the Crown case."

After he ceased to be represented, the appellant added eight further…

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 2)

Details

AGLC: Colquhoun v The Queen (No 2) [2013] NSWCCA 191
Case: [2013] NSWCCA 191
Decision Date: 22 August 2013

CaseChat Overview and Summary

The case involved the appellant, Colquhoun, appealing against his convictions for indecent assault of a person under 16. The appeal was heard in the High Court of Australia. The issue in the case was whether the trial judge had erred in allowing evidence of the appellant’s sexual interest in the complainant to be admitted as tendency evidence under section 97 of the Evidence Act. The appellant argued that the trial judge had misapplied the law in admitting this evidence and that it had led the jury to reason in a way that was impermissible under the law.

The court found that the trial judge had erred in admitting the evidence, as it did not satisfy the requirements of section 97 of the Evidence Act. The court noted that the evidence was not relevant to any fact in issue in the case and was more probative than prejudicial. The court held that the evidence was inadmissible as it was likely to lead the jury to reason in an impermissible way, by inferring the appellant’s guilt based on his sexual interest in the complainant, rather than the facts of the case. The court quashed the convictions and ordered a new trial.

The court emphasised the importance of ensuring that evidence is admissible under the law and that the jury is not led to reason in an impermissible way. The court held that the trial judge had failed to properly apply the law in admitting the evidence and that this error was significant enough to warrant a new trial. The court did not make any orders for costs.

Orders