GZ v The Queen - [2015] ACTCA 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	GZ v The Queen
Citation:	[2015] ACTCA 11
Hearing Date(s):	23 February 2015
DecisionDate:	23 February 2015
Before:	Murrell CJ, Burns J and Robinson AJ
Decision:	The appeal is upheld and the matter is remitted to the Supreme Court of the ACT for retrial.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against children – sexual intercourse with a child under the age of 10 – found guilty at trial. APPEAL – Appeal from the ACT Supreme Court – whether verdicts were unsafe and unsatisfactory – whether trial miscarried because of the failure of counsel to adduce “good character” evidence – whether the trial miscarried because of the admission of “bad character” evidence contained in the complainant’s record of interview with police – held it was open to the jury to conclude that the accused was guilty of the two offences with which he was charged beyond reasonable doubt – held that verdicts were not unsafe and unsatisfactory – held that trial miscarried because of the failure of counsel to adduce available “good character” evidence and the admission of “bad character” evidence – appeal upheld and matter remitted for retrial.
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5531 Evidence Act 2011 (ACT) s 137
Cases Cited:	Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Green v The Queen (1971) 126 CLR 28 M v The Queen (1994) 181 CLR 487 Papakosmas v The Queen (1999) 196 CLR 297 R v Compton and Barrett [2013] SASCFC 134 SKA v The Queen (2011) 243 CLR 400 TKWJ v The Queen (2002) 212 CLR 124
Parties:	GZ (Applicant) The Queen (Respondent)
Representation:	Counsel Mr W Terracini SC with Mr T Quilter (Applicant) Mr J White SC with Mr M Reardon (Respondent)
Solicitors Capon & Hubert Lawyers and Mediators (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 20 of 2014
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 14 April 2014 Case Title: R v GZ Court File Number: SCC 377 of 2009

The COURT:

On 14 April 2014, the appellant was found guilty by a jury of two charges, each alleging that on 8 April 2009 he engaged in sexual intercourse with a child, OH, who was at that time under the age of 10 years.

On 5 June 2014, he was sentenced to imprisonment for seven years and six months on each count, with the sentence on the first count commencing on 14 April 2014. The second sentence commenced six months after the commencement of the first sentence, meaning that the total aggregate sentence was one of eight years’ imprisonment. The primary judge set a non-parole period of four years and six months commencing 14 April 2014.

The appellant appealed against the verdicts and the sentences imposed by the primary judge. The grounds of appeal against conviction were:

(a)the verdicts were unsafe and unsatisfactory;

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 GZ v The Queen

Details

AGLC: GZ v The Queen [2015] ACTCA 11
Case: [2015] ACTCA 11
Decision Date: 23 February 2015

CaseChat Overview and Summary

The appeal concerned a conviction of the appellant, GZ, in the ACT Supreme Court for two offences of sexual intercourse with a child under the age of 10. GZ appealed against these convictions, arguing that the verdicts were unsafe and unsatisfactory.

The Court of Appeal was required to determine whether the jury’s verdicts were unsafe and unsatisfactory. This involved considering two specific grounds of appeal: firstly, whether the trial had miscarried due to the failure of GZ’s trial counsel to adduce evidence of his good character; and secondly, whether the trial had miscarried due to the admission of evidence of GZ’s bad character, contained within the complainant’s record of interview with the police.

The Court held that it was open to the jury to conclude, beyond reasonable doubt, that GZ was guilty of the two offences. However, the Court found that the trial had indeed miscarried. This miscarriage was attributed to both the failure of GZ’s trial counsel to present available evidence of his good character, and the admission of evidence of his bad character. Consequently, the appeal was upheld, and the matter was remitted to the Supreme Court of the ACT for a retrial.

Orders

Orders of the court

The appeal is upheld and the matter is remitted to the Supreme Court of the ACT for retrial.

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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