Hunter v Friedman - [1994] QCA 475

IN THE COURT OF APPEAL [1994] QCA 475

SUPREME COURT OF QUEENSLAND	C.A. No. 314 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Pincus J.A.
[Hunter v. Friedman]

GREGORY JOHN HUNTER

PETER FRIEDMAN (Appellant)

Judgment delivered 09/11/1994

Separate reasons for judgment of each member of the Court, all
concurring as to the order to be made.
________________________________________________________________

APPEAL ALLOWED, CONVICTION SET ASIDE. ORDER THAT THERE BE A NEW
TRIAL.
________________________________________________________________
_

CATCHWORDS:CRIMINAL LAW - APPEAL - CONVICTION - misdirection - alleged assault in taxi of passenger by taxi driver - after alleged assault girl went back in taxi to nightclub - magistrate remarked on sentence that appellant's story unbelievable and that there was no reason for the complainant to have made the story up - whether misdirection - whether new trial should be ordered.

Galvin C.A. No. 132 of 1993, 30 July 1993.

Counsel:Mr P Alcorn for the appellant.

Mr D Meredith for the respondent.

Solicitors:Legal Aid Office for the appellant.

Director of Prosecutions for the respondent.

Hearing date:19 October 1994.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 09/11/1994

The circumstances giving rise to this appeal are set out in the reasons for judgment of Pincus J.A.

The reasons given by the magistrate for convicting the appellant inadequately set out his process of reasoning, and I consider it legitimate to seek an explanation in his remarks on sentencing.

Shortly stated, he considered it "unbelievable", "just too much", "straining credulity", "that a young woman on the Coast would ... get herself into a cab" and travel to Labrador, "... then somehow get herself upset and then somehow get back to [a Gold Coast nightclub] and thereupon concoct a fantastic story about a cab driver assaulting her ...". The plain inference is that, because he considered such a series of events "unbelievable", etc., he was satisfied beyond reasonable doubt that the appellant was guilty.

Three matters may be briefly noted. Firstly, the complainant did not "somehow" get back to the nightclub; it was not in dispute that the appellant drove her there. Secondly, the magistrate cannot have intended to describe the complainant's "story about a cab driver assaulting her" as "fantastic", since his acceptance of that "fantastic story" provided the only foundation for his conviction of the appellant. Thirdly, insofar as the complainant's motive for concocting a "fantastic story" is material, it is not obvious to me that no motive could possibly be imagined.

But the major defect in the magistrate's approach lies in the reason why he believed the appellant. He considered it "unbelievable" that she had concocted her "fantastic story". Assuming that no special virtues or other attributes are to be assigned to young women "on the Coast", this basis for believing what the complainant said seems to involve the proposition that it is unbelieveable that this particular allegation of sexual misconduct would be concocted for no apparent motive.

In my opinion, that proposition cannot be sustained. It is neither legally nor logically permissible to conclude beyond reasonable…

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.

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Details

Case: [1994] QCA 475
Decision Date: 9/11/1994

CaseChat Overview and Summary

The case of Hunter v Friedman, heard by the Court of Appeal of the Supreme Court of Queensland, involved an appeal against the conviction of Gregory John Hunter, who was found guilty of indecently assaulting a woman in a taxi. The primary issue before the court was whether the magistrate had erred in his assessment of the evidence and whether the conviction was safe and satisfactory. The court also considered whether there was a misdirection in the magistrate's handling of the case, particularly in relation to the credibility of the complainant's story.

The court found that the magistrate's reasons for conviction, while indicating an acceptance of the complainant's evidence, were lacking in detailed reasoning. The magistrate's remarks during sentencing, however, suggested that he considered it "unbelievable" and "straining credulity" that the complainant would concoct a story of assault without any apparent motive. The court held that this approach was legally impermissible as it effectively reversed the onus of proof and allowed for an inference not supported by evidence. The court concluded that the conviction should be set aside due to the unsafe and unsatisfactory nature of the verdict, and ordered a new trial.

The court's decision emphasised the importance of adhering to the correct legal standards when assessing the credibility of a complainant's evidence in sexual assault cases. It highlighted that the absence of a plausible motive for fabrication does not shift the burden of proof or alter the standard of proof required for conviction. The appeal was allowed, the conviction set aside, and a new trial ordered.

Orders