MASON CJ, BRENNAN, DEANE AND TOOHEY JJ The appellant pleaded not guilty in the District Court of New South Wales to six charges that, on different specified days in December 1988, he had sexual intercourse with a girl of the age of thirteen years who was, at the time of the alleged offences, under his authority. Four of the charges involved allegations of digital penetration of the child's vagina. Two involved allegations of cunnilingus. On 30 August 1991, the jury convicted the appellant of the two offences involving cunnilingus. It returned verdicts of not guilty in respect of the four charges involving alleged digital penetration but, in respect of each of those charges, found the appellant guilty of an attempt to commit the charged offence. Appeals by the appellant against the convictions and (by leave) sentence were dismissed by the New South Wales Court of Criminal Appeal (Gleeson CJ, Mahoney JA. and Allen J). The appellant now appeals from the judgment and order of the Court of Criminal Appeal dismissing his appeal against conviction.
2. Two distinct grounds of appeal have been argued on behalf of the appellant. The first ground is that the learned trial judge (Downs DCJ) was in error in leaving to the jury the question of alternative convictions of attempt to commit the charged offences involving digital penetration. It was argued on behalf of the appellant that, in the particular circumstances of this case, a finding of not guilty of those charged offences did not leave open conviction of attempt to commit them. The second ground also relates to the four convictions of attempt. It is that the trial judge failed to direct the jury on either the elements of those offences of attempt or the factual issues which were involved in relation to them. Those grounds must be considered in the context of the Crown case and the evidence on the trial.
Evidence
3. The Crown case depended upon the evidence of the complainant which was corroborated in a number of respects. The following summary of the evidence is, to a significant extent, taken from the judgment of Allen J in the Court of Criminal Appeal.
4. As has been indicated, the complainant was thirteen years old at the time of the alleged offences. She was almost sixteen at the time of the trial. She lived in New Zealand. In 1988, when attending the Auckland Easter Show with her parents, she was approached by the appellant who offered to launch her on a modelling career. Over the ensuing months, the appellant took many photographs in New Zealand of the complainant, some in which she was clothed and some in which she was without clothes. In some of those photographs, the complainant was alone. In others, she was with other girls of her own…
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 Holland v The Queen
Sign in free to access the full text
Details
AGLC
Holland v The Queen [1993] HCA 43
Case
[1993] HCA 43
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr. Holland against his conviction for conspiracy to import heroin. The prosecution alleged that Mr. Holland, along with others, had conspired to import a quantity of heroin into Australia. The central dispute revolved around the admissibility of certain evidence and the proper application of the law relating to conspiracy.
The High Court was required to determine whether the trial judge had erred in admitting evidence of conversations between co-conspirators that occurred after the alleged conspiracy had ended. A further issue was whether the trial judge had correctly directed the jury on the elements of the offence of conspiracy, particularly concerning the requirement for an agreement between two or more persons to do an unlawful act.
The Court held that the evidence of post-conspiracy conversations was inadmissible because it did not tend to prove the existence of the conspiracy itself. The reasoning was that once a conspiracy has been proven to exist, the acts and declarations of one conspirator in furtherance of the common design are admissible against the others. However, such evidence cannot be used to prove the existence of the conspiracy in the first place. The Court also clarified that a conspiracy requires a consensus or agreement between at least two people to pursue a common unlawful purpose.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.