FERRY -v- THE QUEEN [2003] WASCA 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 207 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:251/2002 | 5 JUNE & 4 AUGUST 2003 | |
| Coram: | MURRAY J ANDERSON J WHEELER J | 3/09/03 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction granted Appeal against conviction dismissed Leave to appeal against sentence granted Appeal against sentence allowed | ||
| A | |||
| PDF Version |
| Parties: | COLIN GRAEME FERRY THE QUEEN |
Catchwords: | Criminal law Indecent dealing Previous convictions for unrelated offences Admissibility Use to be made of Motive of complainant to lie Whether proper to raise Fairness of prosecutor Needlessly offensive cross-examination Competence of defence counsel Confessions Admissibility Secret tape recording Conversations secretly recorded by complainant's mother Discretion to exclude Lies told by accused to police Use to be made of Distinction between "credibility" lies and "probative lies" Judge's direction Criminal law and procedure Evidence Complainant's evidence recorded on video tape at first trial Retrial on one of two charges Whether complainant's evidence at retrial properly received by video tape recorded at first trial Editing of tape for purposes of retrial Whether discretion not to order complainant to give evidence again properly exercised Criminal law and procedure Sentence Indecent dealing single incident of fondling breasts of 12 year old girl Sentencing patterns Sentence of 2 years' imprisonment set aside as excessive Sentence of 15 months' imprisonment substituted |
Legislation: | Evidence Act 1906 (WA), s 106I(1)(b), s 106T(1), s 106N, s 8, s 25(2) Criminal Code, s 24 Surveillance Devices Act 1998 |
Case References: | Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996 Edwards v The Queen (1993) 178 CLR 193 Goodvinn v The Queen, unreported; CCA SCt of WA; Library No 950358; 2 June 1995 Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082, 4 March 1997 Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994 Lathain v The Queen [2000] WASCA 57 Marria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996 Mathews v The Queen (1973) WAR 110 Palmer v The Queen (1998) 193 CLR 1 R v Bekker (2001) 120 A Crim R 170 R v Furlong [1992] 13 Cr App Rep [S] 112 R v Harkin (1989) 38 A Crim R 296 R v Jenkins (1945) 31 Cr App Rep 1 R v Leak (1969) SASR 172 R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995 R v McLeod [1994] 3 All ER 254 R v Middleton (2000) 114 A Crim R 141 R v Morse (1979) 23 SASR 98 R v Ratten [1974] VR 201 R v Stapley [2001] 1 Cr App Ref [S] 88 R v Suresh (1998) 102 A Crim R 18 R v Swaffield; Pavic v The Queen (1997) 192 CLR 159 Rodd v The Queen [2000] WASCA 329 RPS v The Queen (2000) 199 CLR 620 |
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- Ferry v The Queen [2003] WASCA 207
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- [2003] WASCA 207
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CaseChat Overview and Summary
In the case of Ferry v The Queen, the defendant, Ferry, was convicted of indecent dealing with a 12-year-old girl. The case was heard by the High Court of Australia, where the defendant appealed against both his conviction and sentence. The primary legal issues addressed by the court involved the admissibility of previous convictions, the fairness of the prosecutor's cross-examination, and the judge's direction regarding the use of the complainant's recorded evidence from the first trial at the retrial. Additionally, the court examined the discretion to exclude evidence obtained through secret recordings and the distinction between "credibility" lies and "probative lies."
The court deliberated on whether the previous convictions for unrelated offences were admissible to demonstrate motive and whether the prosecutor's cross-examination was needlessly offensive. It also considered if the judge correctly directed the jury on the use of the complainant's video-recorded evidence from the first trial during the retrial. The court found that the previous convictions were admissible for proving motive, but the prosecutor's cross-examination was deemed unfair. The judge's direction on the use of the complainant's recorded evidence was found to be appropriate. Furthermore, the court examined whether the evidence obtained through secret recordings should have been excluded and clarified the distinction between lies told to protect credibility and those that have probative value.
The High Court determined that the defendant's appeal against conviction was dismissed, but leave to appeal was granted. Regarding the sentence, the court found the original 2-year imprisonment term excessive and substituted it with a 15-month imprisonment term. Consequently, leave to appeal against the sentence was granted, and the appeal against the sentence was allowed. The final orders of the court included granting leave to appeal against the conviction, dismissing the appeal against conviction, granting leave to appeal against the sentence, and allowing the appeal against the sentence.
The court deliberated on whether the previous convictions for unrelated offences were admissible to demonstrate motive and whether the prosecutor's cross-examination was needlessly offensive. It also considered if the judge correctly directed the jury on the use of the complainant's video-recorded evidence from the first trial during the retrial. The court found that the previous convictions were admissible for proving motive, but the prosecutor's cross-examination was deemed unfair. The judge's direction on the use of the complainant's recorded evidence was found to be appropriate. Furthermore, the court examined whether the evidence obtained through secret recordings should have been excluded and clarified the distinction between lies told to protect credibility and those that have probative value.
The High Court determined that the defendant's appeal against conviction was dismissed, but leave to appeal was granted. Regarding the sentence, the court found the original 2-year imprisonment term excessive and substituted it with a 15-month imprisonment term. Consequently, leave to appeal against the sentence was granted, and the appeal against the sentence was allowed. The final orders of the court included granting leave to appeal against the conviction, dismissing the appeal against conviction, granting leave to appeal against the sentence, and allowing the appeal against the sentence.
Orders
Orders of the court
Leave to appeal against conviction granted
Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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