R v AW

Case [2005] QCA 152 13 May 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v AW [2005] QCA 152

PARTIES:

R
v
AW
(appellant)

FILE NO/S:

CA No 436 of 2004
DC No 102 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

Orders delivered ex tempore on 18 April 2005
Reasons delivered 13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2005

JUDGES:

McMurdo P, Jerrard JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – where appellant convicted after trial of rape – where convicted on the basis that complainant had a fork inserted into his anus for a period of approximately four months – where appellant's legal representatives at trial did not challenge medical evidence – where on appeal appellant called further evidence contrary to medical evidence at trial – whether if evidence called on appeal had been before the jury there was a significant or real possibility a reasonable jury would have acquitted the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NONDIRECTION – where complainant intellectually impaired – where complainant initially asked questions by his mother and later by the manager of the organisation which organised the complainant's care about who inserted the fork into his anus – where complainant's responses to questions admitted as preliminary complaints under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – where complainant's response to his mother's question was made after his mother suggested he would not do such a thing to himself – where possibility of false complaint – where trial judge directed jury they may use the evidence of the preliminary complaints to enhance the credibility of the complainant depending on the view they took – whether the complainant's statements were admissible as preliminary complaints under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – whether trial judge misdirected jury in relation to what use could be made of the preliminary complaints

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether the evidence before the jury was capable of satisfying the jury beyond reasonable doubt of the appellant's guilt

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 130

Gallagher v The Queen (1986) 160 CLR 392, applied
M v The Queen (1994) 181 CLR 487, cited
Mickelberg v The Queen (1989) 167 CLR 259, applied
R v RH [2004] QCA 225; CA No 67 of 2004, 2 July 2004, considered

COUNSEL:

P J Callaghan SC for the appellant
M J Copley for the respondent

SOLICITORS:

Quinn & Scattini for the appellant
Director of Public…

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 AW

Details

AGLC: R v AW [2005] QCA 152
Case: [2005] QCA 152
Decision Date: 13 May 2005

CaseChat Overview and Summary

In the case of R v AW, the appellant appealed against his conviction for the rape of a complainant who was intellectually impaired. The appellant was found guilty based on evidence that the complainant had a fork inserted into his anus for approximately four months. The appellant's legal representatives did not challenge the medical evidence presented at trial. On appeal, the appellant presented additional evidence that contradicted the medical evidence from the trial.

The primary legal issues before the court were whether the introduction of fresh evidence on appeal could have led a reasonable jury to acquit the appellant, whether the trial judge misdirected the jury on the use of the complainant's preliminary complaints, and whether the jury's verdict was unreasonable or unsustainable given the evidence presented. The court needed to determine if the appellant's conviction was safe and whether the trial judge properly instructed the jury regarding the admissibility and use of the complainant's preliminary complaints.

The court considered the fresh evidence presented by the appellant and concluded that even if this evidence had been available at the trial, there was no significant or real possibility that a reasonable jury would have acquitted the appellant. The court also examined the trial judge's direction to the jury regarding the preliminary complaints. It found that the trial judge did not misdirect the jury, as the judge correctly instructed the jury that they could consider the complainant's statements to enhance his credibility only if they believed those statements were true. Finally, the court found that the evidence was sufficient to satisfy the jury beyond reasonable doubt of the appellant's guilt. Therefore, the appeal was dismissed, and the conviction was upheld.

Orders