R v AG - [2001] QCA 516

SUPREME COURT OF QUEENSLAND

CITATION:

R v AG [2001] QCA 516

PARTIES:

R
v
AG
(appellant)

FILE NO/S:

CA No 200 of 2001
DC No 9 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Warwick

DELIVERED ON:

23 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2001

JUDGES:

Williams JA, Mackenzie and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where evidence of uncharged acts admitted at trial – where not objected to for tactical advantage – where discretion of trial judge to admit evidence – whether generalised “relationship” evidence was highly prejudicial – whether trial miscarried as a result of the admission of evidence

Gipp v The Queen (1998) 194 CLR 106, distinguished
R v AB [2000] QCA 520; CA No 118 of 2000, 25 August 2000, followed
R v K(No 1) [1997] 1 Qd R 383, considered
R v Witham [1962] Qd R 49, followed

COUNSEL:

B G Devereaux for the appellant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: All relevant facts are fully set out in the reasons for judgment of Mackenzie J. The appeal against conviction should be dismissed for the reasons he has stated. I also agree with the observations of Chesterman J in his concurring reasons.

The ultimate issue was not whether evidence of sexual activity between the appellant and the complainant, other than evidence directly establishing the offences charged, was admissible, but rather whether there should have been some restriction imposed upon the scope of such evidence admissible for the purpose of establishing the relationship between the parties.

As a general proposition, in my view, where such evidence is admissible it should commence with the start of the relevant relationship. If that was not the case generally there would be a necessary artificiality about the evidence which could have a distorting effect. There may well be cases where the evidence of uncharged acts relevant to establish the relationship between the parties could be limited without distorting the evidence of the complainant, and where that was so such limitation should be imposed.

Here the complainant's evidence suggested more explicit sexual acts as she approached puberty and the first act of intercourse, the offence charged, took place a relatively short time thereafter. In those circumstances there was not a clear cut off point which would not have distorted the complainant's account of events. Further, the concentration by the prosecution was on the events surrounding the offence charged. There was not undue emphasis in the prosecution case upon the conduct establishing the relationship between the parties.

There was more…

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 R v AG

Details

AGLC: R v AG [2001] QCA 516
Case: [2001] QCA 516
Decision Date: 23 November 2001

CaseChat Overview and Summary

In the case of R v AG, the respondent appealed against his conviction, arguing that the trial judge misdirected the jury by admitting evidence of uncharged acts. The trial had been conducted in the Supreme Court, and the appeal was heard in the Court of Appeal. The appeal was based on the argument that the admission of this evidence was highly prejudicial and led to a miscarriage of justice, despite the fact that no objection was raised at trial.

The primary legal issue before the court was whether the trial judge had erred in admitting evidence of uncharged acts that were considered highly prejudicial. The court had to determine whether the admission of this evidence constituted a misdirection or non-direction that was so significant it warranted the overturning of the conviction. The court was also required to consider whether the discretion of the trial judge to admit such evidence should have been exercised differently in this instance.

The Court of Appeal held that the discretion of the trial judge to admit evidence of uncharged acts was not exercised improperly, and the trial did not miscarry as a result. The court reasoned that while the evidence may have been prejudicial, it was not so highly prejudicial as to necessitate a misdirection. The court also found that the failure to object to the evidence at trial, despite it being potentially prejudicial, was a tactical decision by the respondent's legal team and did not equate to a miscarriage of justice. Consequently, the appeal against the conviction was dismissed.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AG [2001] QCA 516
PARTIES:	R v AG (appellant)
FILE NO/S:	CA No 200 of 2001 DC No 9 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Warwick
DELIVERED ON:	23 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2001
JUDGES:	Williams JA, Mackenzie and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where evidence of uncharged acts admitted at trial – where not objected to for tactical advantage – where discretion of trial judge to admit evidence – whether generalised “relationship” evidence was highly prejudicial – whether trial miscarried as a result of the admission of evidence Gipp v The Queen (1998) 194 CLR 106, distinguished R v AB [2000] QCA 520; CA No 118 of 2000, 25 August 2000, followed R v K(No 1) [1997] 1 Qd R 383, considered R v Witham [1962] Qd R 49, followed
COUNSEL:	B G Devereaux for the appellant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent