R v Agnew - [2020] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Agnew [2020] QDC 157

PARTIES:

THE QUEEN

v

PETER JAMES AGNEW

(Defendant)

FILE NO:

1106/2020

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 June -24 June 2020

JUDGES:

Richards DCJ

ORDER:

The defendant is guilty of both counts on the indictment

COUNSEL:
S Cupina for the Crown
J Hunter QC for the defendant

SOLICITORS:
Office of the Director of Public Prosecutions for the Crown

Gilshenan and Luton for the Defendant

The defendant is a retired orthodontist. He started his career as a dentist in sole practice in a dental surgery on Stafford Rd at Stafford in 1976. The complainant came to work for him as a junior dental nurse sometime around May 1980 for a period of 6 months. She was 19 turning 20. The practice, which was situated on the first floor of a building was manned by the defendant, the complainant and a receptionist. Due to the passage of time since the events the subject of the charges, the identity of the receptionist is unknown. The charges in this trial arise during this period of employment of the complainant by the defendant.
There are two separate charges in this case to which the defendant has pleaded not guilty. I have considered each charge separately although it is conceded by the defence, and I accept, that if I find the defendant guilty of one of the charges, in particular the indecent assault, it may be relevant in my consideration of the relationship that existed between the parties when considering the more serious charge of rape. However, I also accept that if I have a reasonable doubt about the truthfulness or reliability of the complainant’s evidence in relation to one of the charges, then that is to be taken into account when assessing her truthfulness and reliability generally.
The crown having brought these charges, it is for the crown to discharge its burden of proving the guilt of the defendant beyond a reasonable doubt. He is presumed to be innocent. The burden rests on the prosecution to prove the defendant’s guilt and there is no obligation on him to prove his innocence. In considering the facts I am entitled to accept or reject the evidence of any witness or I may accept their evidence whole or in part. In this case however, because the complainant’s evidence is the only evidence of the rape, her evidence remains crucial to my consideration of the charges and if I do not accept her evidence in relation to that charge beyond reasonable doubt, then the defendant is entitled to be acquitted.
The defendant has given and called evidence in this case, that he has done so does not mean he has assumed the responsibility of proving his innocence. His evidence and the evidence of the character witnesses called on his behalf is evidence that is simply added to that of the prosecution to determine…

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 Agnew

Details

AGLC: R v Agnew [2020] QDC 157
Case: [2020] QDC 157
Decision Date: 10 July 2020

CaseChat Overview and Summary

In the case of R v Agnew, the appellant was convicted on two counts related to indecent acts performed on the complainant. The matter was heard in the County Court of Victoria, where the trial judge found the appellant guilty. The appeal against conviction was subsequently heard in the Court of Appeal. The appellant contested the conviction, asserting that the delay in reporting the incidents, which occurred approximately 40 years prior, undermined the reliability of the complainant's evidence. Additionally, the appellant argued that the evidence was insufficient to support a conviction beyond reasonable doubt.

The court was required to determine whether the delay in reporting the incidents was so significant as to render the complainant's evidence unreliable and whether, even when considering other evidence presented, the appellant's guilt was proven beyond reasonable doubt. The court needed to weigh the complainant's testimony against the potential loss of evidence due to the delay, as well as the other categories of evidence presented, including expert testimony, the appellant's own evidence, and character evidence.

The Court of Appeal found that while the delay in reporting did impact the reliability of the complainant's evidence, it was not so significant as to make it inadmissible. The court emphasised the importance of scrutinising the complainant's testimony with great care, but ultimately found that when combined with the other evidence, it was sufficient to establish the appellant's guilt beyond reasonable doubt. The court highlighted the consistency of the complainant's account, the corroborative evidence from Susan Tonks and Professor Brown, and the appellant's own admissions in the covert recording and interview as supporting the conviction.

The Court of Appeal dismissed the appeal and upheld the appellant's conviction on both counts. The appellant was found guilty of the indecent acts as charged.

Orders

Orders of the court

The defendant is guilty of both counts on the indictment

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence in this case falls into five categories. Firstly, the evidence of the complainant. Secondly, the evidence of Susan Tonks and the expert Professor Brown. Thirdly, the evidence of preliminary complaint. Fourthly, the evidence of the defendant that is encapsulated in the covert recording, the record of interview and his evidence and trial. Fifthly, the character evidence. The complainant’s evidence The complainant’s evidence must be considered in light of the fact that there has been a long delay in reporting the incidents. The incidents are said to have occurred 40 years ago and the accused was not advised of the allegations until the conversation between the two of them in 2016. That delay has had an important consequence. Her evidence cannot be adequately tested or met after the passage of so many years. There is no doubt that there has been some potential evidence lost by reason of the delay. Examples of this are the obvious general matters such as the lost opportunity to establish an alibi if one existed and the ability to have the complainant medically examined. Specific to this case is the inability to ascertain the identity of the receptionist who was working at Stafford at the time, the inability to take photographs of the setup of the surgery that may have differed from the complainant’s memory of events, the inability to get a photograph of the nitrous oxide delivery system that was in use at the time, the inability to check employment records and any documentation about the end of her employment, the inability to recall why he visited her home and generally an inability to recall events in detail around that time. The fairness of the trial has necessarily been impacted by this delay and as a result I should not convict upon the complainant’s testimony alone unless after scrutinising it with great care and considering the circumstances relevant to its evaluation, I am satisfied beyond reasonable doubt of its truth and accuracy. With that caution in mind, it is necessary to look at the evidence of the complainant. The complainant gave evidence that she was young and naïve when she started working for the defendant. She was the junior person in the office and the receptionist was older and not particularly friendly. Things were formal in the office - she called the defendant Dr Agnew. Her job as a junior dental nurse was to assist in the examination room, to clean the instruments and the surgery and to make small talk with the patient prior to the dentist coming in. She described her uniform as being one that she’d purchased at a department store. It was white with short sleeves, a collar and with a zipper down the front and pockets. She described the layout of the surgery with reasonable accuracy, although there was some slight difference in detail between herself and the defendant in relation to the layout of the back room. She said that the back area (or tech lab) had a door to the back car park, tech work was done on the benches and there was a table just inside the back door which was like a small desk with a chair beside it. She said the practise for lunch was that everybody did their own thing. The defendant said that there was a door into the reception opposite the back door and that the table and chair/s were in a different position. He said that everyone ate lunch together generally.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Agnew [2020] QDC 157
PARTIES:	THE QUEEN v PETER JAMES AGNEW (Defendant)
FILE NO:	1106/2020
DIVISION:	Crime
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	22 June -24 June 2020
JUDGES:	Richards DCJ
ORDER:	The defendant is guilty of both counts on the indictment
COUNSEL:	S Cupina for the Crown J Hunter QC for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Gilshenan and Luton for the Defendant