R v Ambury - [2012] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ambury [2012] QCA 178

PARTIES:

R
v
AMBURY, Christopher John
(appellant)

FILE NO/S:

CA No 339 of 2011
DC No 209 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

29 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2012

JUDGES:

Chief Justice, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Appeal against conviction is allowed.

2.     Convictions and verdicts set aside.

3.     New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child and three counts of rape – where the appellant was acquitted of two further counts of rape – whether the guilty verdicts are unreasonable and inconsistent with the acquittals – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted of one count of maintaining a sexual relationship with a child and three counts of rape, and was acquitted of two further counts of rape – where the trial judge allowed the admission of evidence of changes of behaviour in the complainant as evidence of distress – where the trial judge directed the jury that these changes in behaviour were supportive of the complainant’s evidence – whether the trial judge erred in admitting the evidence – whether this resulted in a miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld)

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
R v H[2001] QCA 563, considered
R v Roissetter [1984] 1 Qd R 477, cited
R v Williams [2010] 1 Qd R 276; [2008] QCA 411, considered

COUNSEL:

K Prskalo for the appellant
V A Loury for the respondent

SOLICITORS:

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

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by her Honour, and with her reasons.

HOLMES JA: The appellant appeals his conviction by a jury of one count of maintaining a sexual relationship with a child and three counts of rape. He was acquitted of a further two counts of rape, while another rape count was the subject of a nolle prosequi in the course of the trial, because it could not be established that the offence alleged had occurred within the jurisdiction. The grounds on which he appeals are that the trial judge erred in admitting evidence of changes in behaviour of the complainant, F, as evidence of distress and in directing the jury that it supported F’s evidence; and that the guilty verdicts are unreasonable and inconsistent…

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 Ambury

Details

AGLC: R v Ambury [2012] QCA 178
Case: [2012] QCA 178
Decision Date: 29 June 2012

CaseChat Overview and Summary

The appellant, who was convicted of one count of maintaining a sexual relationship with a child and three counts of rape, and acquitted of two further counts of rape, appealed against his conviction. The jury's verdicts of guilty on some counts and acquittal on others were inconsistent and unreasonable, raising questions about whether there had been a miscarriage of justice. Additionally, the appellant challenged the trial judge's decision to admit evidence of changes in the complainant's behaviour as evidence of distress and to direct the jury that these changes supported the complainant's evidence, arguing that this constituted an error in the admission of evidence and resulted in a miscarriage of justice.

The legal issues before the court were whether the verdicts were inconsistent and unreasonable, and whether the trial judge's admission of evidence and direction to the jury constituted an error resulting in a miscarriage of justice. The court found that the verdicts were inconsistent and unreasonable, given the acquittals on two counts of rape. The court also found that the trial judge erred in admitting the evidence of changes in the complainant's behaviour and in directing the jury that these changes supported the complainant's evidence. This error had the potential to result in a miscarriage of justice, as it may have influenced the jury's decision on the counts of which the appellant was convicted.

The court allowed the appeal against conviction, set aside the convictions and verdicts, and ordered a new trial. The court found that the inconsistency and unreasonableness of the verdicts, coupled with the error in the admission of evidence and direction to the jury, warranted the setting aside of the convictions and verdicts. The court concluded that a new trial was necessary to ensure a fair trial and to prevent a miscarriage of justice.

Orders

Orders of the court

1. Appeal against conviction is allowed.

2. Convictions and verdicts set aside.

3. New trial ordered.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	R v Ambury [2012] QCA 178
PARTIES:	R v AMBURY, Christopher John (appellant)
FILE NO/S:	CA No 339 of 2011 DC No 209 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	29 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2012
JUDGES:	Chief Justice, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction is allowed. 2. Convictions and verdicts set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child and three counts of rape – where the appellant was acquitted of two further counts of rape – whether the guilty verdicts are unreasonable and inconsistent with the acquittals – whether there has been a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted of one count of maintaining a sexual relationship with a child and three counts of rape, and was acquitted of two further counts of rape – where the trial judge allowed the admission of evidence of changes of behaviour in the complainant as evidence of distress – where the trial judge directed the jury that these changes in behaviour were supportive of the complainant’s evidence – whether the trial judge erred in admitting the evidence – whether this resulted in a miscarriage of justice Criminal Law (Sexual Offences) Act 1978 (Qld) MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered R v H[2001] QCA 563, considered R v Roissetter [1984] 1 Qd R 477, cited R v Williams [2010] 1 Qd R 276; [2008] QCA 411, considered
COUNSEL:	K Prskalo for the appellant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent