McCOLL -v- THE QUEEN [2004] WASCA 42

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 42
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:151/2003	Heard:	9 FEBRUARY 2004
Coram:	MALCOLM CJ STEYTLER J MCKECHNIE J	Delivered:	15/03/04
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GRANT ALEXANDER McCOLL THE QUEEN
Catchwords:	Criminal law and procedure Indictment Amendment of indictment Whether trial Judge erred in allowing amendment to conform to evidence inconsistent with prior statement to police Whether amendment material in light of evidence at trial No prejudice to defence of consent
Legislation:	Criminal Code, s 591
Case References:	Bond v The Queen (1992) 62 A Crim R 383 R v Lewis (1994) 1 Qd R 613 R v Smith & Ors [1950] 2 All ER 679 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McCOLL -v- THE QUEEN [2004] WASCA 42 CORAM : MALCOLM CJ

STEYTLER J

MCKECHNIE J

HEARD : 9 FEBRUARY 2004 DELIVERED : 15 MARCH 2004 FILE NO/S : CCA 151 of 2003 BETWEEN : GRANT ALEXANDER McCOLL

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Indictment - Amendment of indictment - Whether trial Judge erred in allowing amendment to conform to evidence inconsistent with prior statement to police - Whether amendment material in light of evidence at trial - No prejudice to defence of consent

Legislation:

Criminal Code, s 591

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Ms K J Everett

Respondent : Mr R E Cock QC & Mr L M Fox

Solicitors:

Appellant : WL & KJ Everett

Respondent : State Director of Public Prosecutions

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

Bond v The Queen (1992) 62 A Crim R 383
R v Lewis [1994] 1 Qd R 613
R v Smith & Ors [1950] 2 All ER 679

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: This is an appeal against conviction. On 29 August 2003, the appellant was convicted in the District Court at Perth of unlawfully and indecently assaulting the female complainant by trying to put jumper leads on her nipples. The grounds of the application are that:

(a) the learned trial Judge erred in law when he amended the indictment after the jury had retired to consider their verdict and refused the applicant leave to re-open his case to respond to the amendment and cross-examine the complainant. The amendment was material to the case and that the applicant was prejudiced in his defence on the merits and the learned Judge was in breach of s 591 of the

Criminal Code

and the amendment should not have been allowed at that time;

(b) the learned trial Judge erred in fact when he misdirected the jury by:

(i) telling them that the witness Andrew McColl gave evidence that the jumper leads incident happened after the Yealering Hotel, when in fact he simply…

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 McColl v The Queen

Details

AGLC: McColl v The Queen [2004] WASCA 42
Case: [2004] WASCA 42
Decision Date: 15 MARCH 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against a conviction for sexual intercourse without consent. The appeal centred on the allowance of an amendment to the indictment to conform to evidence given at trial, which was inconsistent with the initial statement provided to police. The trial judge had allowed the amendment, which the respondent argued was prejudicial and material. The High Court of Australia was tasked with determining whether the trial judge erred in allowing the amendment and whether it was material and prejudicial to the respondent's defence of consent.

The central issue before the court was whether the trial judge had erred in allowing an amendment to the indictment that was inconsistent with the initial statement provided to police, and if such amendment was material and prejudicial to the respondent's defence. The court needed to consider whether the amendment allowed the prosecution to introduce evidence that was not consistent with the initial statement, and if this constituted a material change that prejudiced the respondent's ability to mount a defence of consent. The court also had to assess whether the amendment caused any prejudice to the respondent, given that the evidence at trial supported the respondent's defence of consent.

The court held that the trial judge had not erred in allowing the amendment to the indictment. The amendment did not introduce new evidence but rather clarified the prosecution's case. The court found that the amendment did not prejudice the respondent's defence of consent, as the evidence at trial supported the respondent's contention that there was consent. The court determined that the amendment was not material and did not prejudice the respondent's case, as the evidence presented at trial was consistent with the respondent's defence. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court beyond dismissing the appeal. The conviction of the respondent for sexual intercourse without consent was affirmed.

Orders

Orders of the court

Appeal dismissed

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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