R v Baker

Case [2001] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION: R v Baker [2001] QCA 326
PARTIES: R
v
BAKER, Shane Patrick
(appellant)
FILE NO/S: CA No 35 of 2001
DC No 16 of 2001
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction
ORIGINATING COURT:

District Court at Maroochydore
DELIVERED ON: 10 August 2001
DELIVERED AT: Brisbane
HEARING DATE: 13 July 2001
JUDGES: McMurdo P, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court; McMurdo P and Davies JA concurring as to the orders made, Thomas JA dissenting in part.
ORDER: Appeal against conviction on counts 1 and 2 dismissed; appeal against conviction on counts 3 and 4 allowed; direct a retrial on counts 3 and 4.
CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – INDECENT TREATMENT  – ADMINISTERING A STUPIFYING DRUG WITH INTENT TO COMMIT AN INDICTABLE OFFENCE – where the appellant was convicted of three counts of indecent treatment of a child under 16 and one of administering a stupefying drug with intent to commit an indictable offence

CRIMINAL LAW – EVIDENCE – COMPLAINTS – FIRST REASONABLE OPPORTUNITY – where there was a delay of between two and four years between the allegations and making of a complaint – where the explanation given was that the complainant did not want to jeopardise friendship between appellant and her father

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – where the evidence in respect of count four consisted solely of an alleged confession made by the appellant to the complainant – where trial judge failed to
direct jury that they must be satisfied beyond a reasonable doubt that the confession was made and it was true – where this error was fundamental – Burns v The Queen

APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON DIRECTION – where trial judge failed to give a Kilby direction in that lack of recent complaint is relevant to the credit of the complainant – qualifications in Crofts v The Queen as to the duty to give a Kilby warning considered – extent to which directions are necessary on limited use of evidence of recent complaint and of late complaint – whether absence of each directions a miscarriage of justice

Crimes Act 1958 (Vic), s 61
Criminal Code s 632

Burns v The Queen (1975) 132 CLR 258, followed
Crofts v The Queen (1996)186 CLR 427, considered
Jones v The Queen (1997) 71 ALJR 538, considered
Jones v The Queen (1997) 191 CLR 439, considered
Kilby v The Queen (1973) 129 CLR 460, considered
Longman v The Queen (1989) 168 CLR 79, considered
M v The Queen (1994) 181 CLR 487, considered
R v A [2000] QCA 520, CA No 118 of 2000, 19 December 2000, considered
R v King (1995) 78 A Crim R 53, considered
R v LSS [1998] QCA 303, CA No 128 of 1998, 2 October 1998, considered
R v M (2000) 109 A…

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AGLC
R v Baker [2001] QCA 326
Case
[2001] QCA 326
Decision Date

CaseChat Overview and Summary

In the matter of R v Baker, the appellant was convicted by a jury in the County Court of Victoria on four counts: three counts of indecent treatment of a child under 16 and one count of administering a stupefying drug with intent to commit an indictable offence. The Supreme Court of Victoria was tasked with hearing the appellant’s appeal against his conviction. The crux of the appeal hinged on the sufficiency and admissibility of the evidence presented, particularly the delayed complaints and the handling of a crucial confession.

The primary legal issues before the court were whether the trial judge erred in failing to direct the jury on the importance of the timing of the complaints, and whether there was a fundamental error in not requiring the jury to be satisfied beyond reasonable doubt that the appellant’s alleged confession was both made and truthful. The appellant argued that the delay in the complainant making her allegations, which spanned between two to four years, meant that the trial judge should have directed the jury on the relevance of the timing of the complaint to the complainant's credibility. Furthermore, the appellant contended that the trial judge's failure to instruct the jury to be certain of the existence and veracity of the confession was a critical misdirection.

The court held that while the delay in making the complaint did not necessitate a specific Kilby direction, the failure to address the necessity for the jury to be convinced of the confession's truth was a significant error. The court found that this omission was fundamental and akin to the error identified in Burns v The Queen, which necessitates a retrial. Consequently, the appeal against the convictions on counts 1 and 2 was dismissed, but the appeal against counts 3 and 4 was allowed. The court ordered a retrial on counts 3 and 4 due to the trial judge’s failure to properly direct the jury on the confession evidence.

Orders

Orders of the court

Appeal against conviction on counts 1 and 2 dismissed; appeal against conviction on counts 3 and 4 allowed; direct a retrial on counts 3 and 4.

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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