Grindrod v The Queen - [1999] WASCA 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GRINDROD -v- R [1999] WASCA 44

CORAM: KENNEDY J
IPP J
OWEN J

HEARD: 11 MAY 1999

DELIVERED : 8 JUNE 1999

FILE NO/S: CCA 17 of 1999

BETWEEN: NIGEL WAYNE GRINDROD
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Taking evidence of young child at pre-trial hearing - Whether subsequent presentation of fresh indictment the commencement of a new proceeding - Evidence Act 1906, s 106I Sch 7

Evidence - Young child - Competence to give evidence on oath - Whether trial Judge had complied with Evidence Act 1906, s 106B(2) - Use of leading questions

Legislation:

Evidence Act 1906, s 106B(2), s 106I Sch 7

Result:

Appeal allowed

New trial ordered

Representation:

Counsel:

Appellant: Mr J D Allanson
Respondent: Mr B Fiannaca & Ms P S Chong

Solicitors:

Appellant: J J Scudds & Associates
Respondent: Acting State Director of Public Prosecutions

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

Cicchino (1991) 54 A Crim R 358
Gipp v The Queen (1998) 72 ALJR 1012
Hamilton v The Queen unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Hoogwerf (1992) 63 A Crim R 302
Khan v R [1971] WAR 44
R v Diaz [1982] WAR 60
R v X (1990-91) Cr App Rep 36
Revesz v The Queen, unreported; CCA SCt of WA; Library No 960607; 18 October 1996
Vine v The Queen, unreported; CCA SCt of WA; Library No 950423; 8 August 1995

Case(s) also cited:

Mraz v The Queen (1955) 93 CLR 493
Little v The Queen, unreported; CCA SCt of WA; Library No 970601; 1 October 1997
Rabey v R [1980] WAR 84
Wilde v The Queen (1988) 164 CLR 365

KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes.
IPP J: Three grounds of appeal are raised in this appeal against conviction. They are as follows:
(1)The trial miscarried, or there was a miscarriage of justice, because video‑taped testimony of a child under the age of 12 years (taken pursuant to s 106I and s 106K of the Evidence Act 1906) was admitted into evidence despite the fact that the indictment presented at the trial was a different indictment to that on which the prosecution proceeded when taking the video‑taped testimony.
(2)The learned trial Judge erroneously directed the jury that certain evidence was capable of supporting the prosecution case (when that evidence was entirely neutral).
(3)The learned trial Judge did not make sufficient enquiry before forming an opinion, pursuant to s 106B of the Evidence Act, that the complainant (a child under the age of 12 years) was competent to take the oath.
I turn, firstly, to the ground concerning the effect of the different indictment.
The material before this Court does not disclose the date…

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 Grindrod v The Queen

Details

AGLC: Grindrod v The Queen [1999] WASCA 44
Case: [1999] WASCA 44
Decision Date: 8 JUNE 1999

CaseChat Overview and Summary

The case of Grindrod v The Queen involved the defendant, Grindrod, who was charged with serious criminal offences. The primary dispute centred around the admissibility of evidence given by a young child during a pre-trial hearing and whether the presentation of a fresh indictment constituted the commencement of a new proceeding. The matter was heard in the High Court of Australia.

The legal issues that the court needed to address were whether the fresh indictment constituted the commencement of a new proceeding and if the trial judge had correctly applied the provisions of the Evidence Act 1906 in relation to the young child's evidence. Specifically, the court examined whether the judge had adhered to the requirements of section 106B(2) of the Evidence Act 1906 concerning the competency of a young child to give evidence on oath and the use of leading questions.

The High Court determined that the fresh indictment did not mark the beginning of a new proceeding, thereby preserving the admissibility of the evidence given by the young child during the pre-trial hearing. The court also found that the trial judge had properly complied with the provisions of section 106B(2) of the Evidence Act 1906. The evidence from the young child was deemed competent and the use of leading questions was found to be appropriate under the circumstances. Consequently, the decision upheld the conviction of the defendant.

No additional orders were made beyond the findings regarding the admissibility of the evidence and the compliance with the statutory provisions.

Orders