R v B - [2003] QCA 465

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 465

PARTIES:

R
v
B
(appellant)

FILE NO/S:

CA No 207 of 2003
DC No 71 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

31 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2003

JUDGES:

Jerrard JA and Jones and Holmes JJ
Separate reasons for judgment of each member of the Court, Jerrard JA and Holmes J concurring as to orders made, Jones J dissenting

ORDERS:

1. Set aside the convictions for unlawful carnal knowledge against the order of nature, unlawfully and indecently dealing with a girl under 16 years of age, and rape
2. Order a new trial on those counts
3. Remand the appellant in custody until further or other order of a court with jurisdiction to grant him bail

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where prosecution permitted to lead evidence that the appellant had previously been in prison – whether the Crown was entitled to lead such evidence in chief in an anticipatory rebuttal of an attack on credit – whether such evidence was admissible as part of the res gestae – whether such evidence was so prejudicial that its admissibility had caused justice to miscarry

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the trial judge had described certain conduct leading to the applicant’s prior convictions in terms of the latter having “taken advantage of” his then victim – whether a description of the applicant’s prior convictions in these terms was appropriate

Harriman v The Queen (1989) 167 CLR 590, referred to
R v Johnson v Edwards [1981] Qd R 440, discussed
R v Bickle [1993] QCA 321; CA No 346 of 1992, 2 September 1993, referred to
R v F (1995) 83 A Crim R 502, considered

COUNSEL:

M J Griffin SC for the appellant
R G Martin for the respondent

SOLICITORS:

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

JERRARD JA: In this matter I have had the considerable advantage of reading the reasons for judgment of Jones J and Holmes J, and like Holmes J I gratefully adopt the background facts carefully set out in the judgment of Jones J. I respectfully agree with Jones J that the sentence imposed upon B was well within the appropriate sentencing range, but agree with Holmes J that B’s conviction should be set aside and a new trial ordered.

The appellant’s remark “Don’t tell anyone ‘cause I’ll go away again” was not made admissible simply because it was said immediately after the first time the appellant sexually exploited the complainant. Rather, if those words are admissible, that is because the appellant’s…

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 B

Details

AGLC: R v B [2003] QCA 465
Case: [2003] QCA 465
Decision Date: 31 October 2003

CaseChat Overview and Summary

The appeal before the court involved the conviction and sentence of the appellant, B, for various sexual offences against a minor. The appellant was found guilty of unlawful carnal knowledge against the order of nature, unlawfully and indecently dealing with a girl under 16 years of age, and rape. The central issue in the appeal was whether the trial judge improperly admitted evidence regarding the appellant's previous imprisonment and whether the judge's description of the conduct leading to the prior convictions was appropriate. Additionally, the appellant challenged the sentence imposed by the trial judge.

The court examined whether the prosecution was justified in leading evidence of the appellant's prior imprisonment in anticipatory rebuttal of a potential attack on his credit. The court also considered whether this evidence was admissible as part of the res gestae or whether it was so prejudicial that it caused justice to miscarry. Furthermore, the court reviewed whether the trial judge's characterisation of the appellant's prior conduct as him "taking advantage" of his then victim was appropriate.

The court found that the evidence of the appellant's prior imprisonment was improperly admitted, as it was not part of the res gestae and was highly prejudicial. The court determined that the admission of this evidence caused justice to miscarry, as it significantly influenced the jury's decision-making process. The court also found that the trial judge's description of the appellant's prior conduct was inappropriate and may have prejudiced the jury against the appellant. The court set aside the convictions and ordered a new trial on those counts. The appellant was remanded in custody until further or other order of a court with jurisdiction to grant him bail.

Orders

Orders of the court

1. Set aside the convictions for unlawful carnal knowledge against the order of nature, unlawfully and indecently dealing with a girl under 16 years of age, and rape

2. Order a new trial on those counts

3. Remand the appellant in custody until further or other order of a court with jurisdiction to grant him bail

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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CITATION:	R v B [2003] QCA 465
PARTIES:	R v B (appellant)
FILE NO/S:	CA No 207 of 2003 DC No 71 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	31 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2003
JUDGES:	Jerrard JA and Jones and Holmes JJ Separate reasons for judgment of each member of the Court, Jerrard JA and Holmes J concurring as to orders made, Jones J dissenting
ORDERS:	1. Set aside the convictions for unlawful carnal knowledge against the order of nature, unlawfully and indecently dealing with a girl under 16 years of age, and rape 2. Order a new trial on those counts 3. Remand the appellant in custody until further or other order of a court with jurisdiction to grant him bail
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where prosecution permitted to lead evidence that the appellant had previously been in prison – whether the Crown was entitled to lead such evidence in chief in an anticipatory rebuttal of an attack on credit – whether such evidence was admissible as part of the res gestae – whether such evidence was so prejudicial that its admissibility had caused justice to miscarry CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the trial judge had described certain conduct leading to the applicant’s prior convictions in terms of the latter having “taken advantage of” his then victim – whether a description of the applicant’s prior convictions in these terms was appropriate Harriman v The Queen (1989) 167 CLR 590, referred to R v Johnson v Edwards [1981] Qd R 440, discussed R v Bickle [1993] QCA 321; CA No 346 of 1992, 2 September 1993, referred to R v F (1995) 83 A Crim R 502, considered
COUNSEL:	M J Griffin SC for the appellant R G Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public prosecutions (Queensland) for the respondent