CITATION: J v The Queen (No 2) [1989] TASSC 37; (1989) Tas R 116; A33/1989
PARTIES: J v THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 65/1987 DELIVERED ON: 24 August 1989 DELIVERED AT: Hobart JUDGMENT OF: Green CJ, Underwood and Wright JJ
Judgment Number: A33/1989 Number of paragraphs: 97
Serial No 33/1989 List "A: File No CCA 65/1987
J v THE QUEEN (No 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ UNDERWOOD J WRIGHT J 24 August 1989
Order of the Court
Direct that judgments and verdicts of acquittal be entered in respect of counts 2, 3, and 5.
Serial No 33/1989 List "A: File No CCA 65/1987
J v THE QUEEN (No 2)
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
24 August 1989
This is an appeal and an application for leave to appeal against conviction which was partially determined by orders made by this Court for reasons published on 21 October 1988, Serial No 47/1988. The High Court has set aside so much of this Court's order as directed that there be a new trial and has ordered that the matter be remitted to this Court to complete the hearing and determination of the appeal.
The charges and the verdicts which are the subject of this appeal are as follows:
Count 1 Unnatural carnal knowledge of A in approximately December 1985: not guilty.
Count 2 Unnatural carnal knowledge of B between the 1 September 1986 and 25 September 1986: guilty.
Count 3 Assault of B on 25 September 1986: guilty.
Count 4 Indecent assault of B on or about the 25 September 1986: not guilty.
Count 5 Rape of A on or about the 30 January 1987: not guilty of rape but guilty of indecent assault.
The only grounds now relied upon by the appellant are as follows:
"5That the learned Trial Judge erred in law in directing the jury as he did as to corroboration of the complainant's evidence.
6That the learned Trial Judge erred in law in allowing alleged evidence of similar facts to be led by the Crown."
The error alleged in ground 5 was identified in a supplementary document as follows:
"EThe learned trial judge erred in law in holding that the evidence of one complainant was capable in law of corroborating the evidence of another complaint (sic)."
The court having already held that the convictions on counts 2, 3 and 5 should be quashed, the question now before the court is whether a retrial should be ordered or whether judgments and verdicts of acquittal should be entered instead.
At the time of the trial s136(1) of the Criminal Code read:
"136–(1) No person shall be convicted of any crime under the provisions of any of the foregoing sections of this chapter, or of an attempt to commit the same, on the evidence of the person in respect of whom the crime is alleged to…
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
AGLC
J v the Queen (No 2) [1989] TASSC 37
Case
[1989] TASSC 37
Decision Date
CaseChat Overview and Summary
This case concerned an appeal against conviction and sentence, and an application for leave to appeal against sentence, by the appellant who was convicted of various sexual offences. The appeal was partially determined by orders made by this Court for reasons published on 21 October 1988. The High Court set aside so much of this Court's order as directed that there be a new trial and ordered that the matter be remitted to this Court to complete the hearing and determination of the appeal. The only grounds now relied upon by the appellant were that the learned Trial Judge erred in law in directing the jury as he did as to corroboration of the complainant's evidence and in allowing alleged evidence of similar facts to be led by the Crown. The court having already held that the convictions on counts 2, 3 and 5 should be quashed, the question now before the court was whether a retrial should be ordered or whether judgments and verdicts of acquittal should be entered instead. The court held that verdicts and judgments of acquittal should be entered in respect of counts 2 and 5. In view of the length of time which the appellant had already spent in prison the court did not think that a retrial on count 3 would be warranted and in its opinion a verdict and judgment of acquittal should be entered in respect of that count also.