R v BAR

Case [2005] QCA 80 29 March 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BAR [2005] QCA 80

PARTIES:

R
v
BAR
(appellant)

FILE NO/S:

CA No 317 of 2004

DC No 141 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

29 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2005

JUDGES:

McPherson JA, Mackenzie and Chesterman JJ
Separate reasons for judgment of each member of the Court, McPherson JA and Chesterman J concurring as to the orders made, Mackenzie J dissenting

ORDER:

1.   Appeal allowed and convictions on counts 18 to 24 quashed

2.   Re-trial ordered on those counts

3.   Application for leave to appeal against sentence in respect of counts 1 to 17 refused

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – ADMISSIBILITY – GENERALLY – where the appellant was convicted on 17 counts of sexual misconduct against a girl under the legal age of consent who is his stepdaughter – where the appellant was further convicted on 7 counts of indecently dealing with another girl under the legal age of consent who is also his stepdaughter – where the trial judge admitted evidence given by one girl in relation to counts relating to the other girl – whether the trial judge erred in allowing similar fact evidence on the basis that it was ‘substantially similar’ – whether the trial judge erred in not exercising a discretion to exclude the evidence

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – whether the sentence imposed was manifestly excessive

Criminal Code Act 1899 (Qld)
Criminal Offence Victims Act 1995 (Qld)
Evidence Act 1997 (Cth)

Carne v R [1997] QCA 176, cited
Director of Public Prosecutions v P [1991] 2 AC 447, discussed
Hoch v R (1988) 165 CLR 292, discussed
Hooper v R [1999] QCA 310, discussed
Makin v Attorney-General for New South Wales [1894] AC 57, discussed
Meissner v R (1995) 184 CLR 132, cited
Mitchell v R (1952) 36 CrAppR79, cited
Peacock v R (1911) 13 CLR 619, cited
Pfennig v R (1995) 182 CLR 461, discussed
R v Baskerville [1916] 2 KB 658, cited
R v Berrill [1982] Qd R 508, cited
R v Boardman [1975] AC 421, discussed
R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266, cited
R v Makin & Wife (1893) 14 NSWLR 1 (L), discussed
R v Noyes [2003] QCA 564, cited
R v O’Keefe [2000] 1 Qd R 564, discussed
R v Riley [1997] QCA 277, cited
R v S [2001] QCA 501, discussed
R v Sims [1946] KB 531, cited

COUNSEL:

P E Nolan, with N Martin for the appellant
M J Copley for the respondent

SOLICITORS:

Jason Buckland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: In August 2004 the appellant was arraigned in the District…

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 BAR

Details

AGLC: R v Bar [2005] QCA 80
Case: [2005] QCA 80
Decision Date: 29 March 2005

CaseChat Overview and Summary

The appellant was convicted on 17 counts of sexual misconduct against his stepdaughter, and on a further 7 counts of indecently dealing with another stepdaughter. The trial judge admitted evidence given by one girl in relation to counts relating to the other girl, which the appellant argued was inadmissible similar fact evidence. The appellant further argued that the sentence imposed was manifestly excessive. The appeal was heard by the court of criminal appeal, which considered the admissibility of the similar fact evidence and the appropriateness of the sentence.

The court considered whether the trial judge erred in admitting similar fact evidence, and whether the trial judge should have exercised a discretion to exclude the evidence. The court found that the evidence was substantially similar and should not have been admitted. The court also considered whether the sentence imposed was manifestly excessive, but found that it was not. The court held that the trial judge erred in admitting the similar fact evidence and quashed the convictions on counts 18 to 24. The court ordered a re-trial on those counts and refused the application for leave to appeal against the sentence in respect of counts 1 to 17.

The appeal was allowed in part, and the convictions on counts 18 to 24 were quashed. A re-trial was ordered on those counts. The application for leave to appeal against the sentence in respect of counts 1 to 17 was refused. The court held that the trial judge erred in admitting similar fact evidence and that the sentence imposed was not manifestly excessive. The decision highlights the importance of ensuring that evidence is admissible and that sentences are appropriate.

Orders

Orders of the court

1. Appeal allowed and convictions on counts 18 to 24 quashed

2. Re-trial ordered on those counts

3. Application for leave to appeal against sentence in respect of counts 1 to 17 refused

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Bar [2005] QCA 80

Most Recent Citation

R v WAH [2009] QCA 263

Cases Citing This Decision

R v WAH [2009] QCA 263
Citation 1

…[1995] HCA 7, cited Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited R v BAR (2005) 152 A Crim R 428; [2005] QCA 80, cited R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited R v CX [2005] QCA 222, cited R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281, cited R v LT [2006] QCA 534, cited R v Swan…
R v The Queen [2005] QDC 296
Citation 2 (Para 3)

…With respect to the most recent Court of Appeal decision, R v BAR [2005] QCA 80, it was submitted that: “The judgments of McPherson JA and Chesterman J in that case fail to recognise that ‘the central question is that of the improbability of similar lies’. Each examined a list of similarities, dismissed them as…

See all citing cases →

Cases Cited

R v Noyes [2003] QCA 564
Citation 1

…-Guerra ex parte Attorney-General [2001] QCA 266, cited R v Makin & Wife (1893) 14 NSWLR 1 (L), discussed R v Noyes [2003] QCA 564, cited R v O’Keefe [2000] 1 Qd R 564, discussed R v Riley [1997] QCA 277, cited R v S [2001] QCA 501, discussed R v Sims [1946] KB 531, cited COUNSEL: P E Nolan, with N Martin for the…
R v S [2001] QCA 501
Citation 2 (Para 1)

…Reference should also be made to R v S [2001] QCA 501, a case where joinder of counts in respect of two complainants was in issue, where the evidence of one girl had been held not to be admissible in the case involving another girl. Thomas JA referred to “a strong leaning in favour of severance of sexual offences…
R v Delgado-Guerra [2001] QCA 266
Citation 3 (Para 1)

…l to its admissibility, relying on Pfennig , Carne v R [1997] QCA 176, Hooper v R [1999] QCA 310 and R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266. He repeated what de Jersey CJ said in Hooper , that while “striking similarity”, “unusual features”, “underlying unity”, “system” or “pattern” will ofte…
R v Hooper [1999] QCA 310
Citation 4 (Para 1)

…rities in the conduct under consideration is not inevitably fatal to its admissibility, relying on Pfennig , Carne v R [1997] QCA 176, Hooper v R [1999] QCA 310 and R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266. He repeated what de Jersey CJ said in Hooper , that while “striking similarity”, “unusua…
R v R [1997] QCA 277
Citation 5 (Para 1)

…en committed against B. The most that K’s evidence established against the appellant was, as Dowsett J said of the accused in R v Riley [1997] QCA 277, that he had a propensity or disposition for taking advantage of opportunities for sexual misconduct as they presented themselves. In this, he resembles many other…
R v Carne [1997] QCA 176
Citation 6 (Para 1)

…that existence of dissimilarities in the conduct under consideration is not inevitably fatal to its admissibility, relying on Pfennig , Carne v R [1997] QCA 176, Hooper v R [1999] QCA 310 and R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266. He repeated what de Jersey CJ said in Hooper , that while “st…
Meissner v the Queen [1995] HCA 41
Citation 7 (Para 1)

…roof of the charges involving K. His pleas were formal admissions in open court of all the elements of those offences (see Meissner v The Queen (1995) 184 CLR 132, 157), which included the fact that he had committed the acts comprised in those charges. He did not attempt to withdraw them, and the court accepted the a…
Pfennig v the Queen [1995] HCA 7
Citation 8 (Para 1)

…Their Honours’ views were repeated, and perhaps further refined, in Pfennig v The Queen (1995) 182 CLR 461, 480-484. Like Makin v The Queen , it was an example of the second of the two functions described by their Honours, being a case in which evidence of the accused’s earlier conduct in abducting a boy was held to…
Hoch v the Queen [1988] HCA 50
Citation 9 (Para 1)

…the past, the admissibility of similar fact evidence on charges of sexual offences has been settled in Australia by the decision of the High Court in Hoch v The Queen (1988) 165 CLR 292. In that instance, the accused had been charged with indecently dealing with three boys on different occasions while they were resident i…
Sutton v The Queen [1984] HCA 5
Citation 10

…‘In Sutton ((1984) 152 CLR 528 at 564) Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is i…
Martin v Osborne [1936] HCA 23
Citation 11

…onable explanation other than the inculpation of the accused person in the offence charged: see Dixon J’s discussion (at 375) in Martin v Osborne (1936) 55 CLR 367. In that same case Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for…
Peacock v The King [1911] HCA 66
Citation 12

…s [1894] AC 57, discussed Meissner v R (1995) 184 CLR 132, cited Mitchell v R (1952) 36 CrAppR79, cited Peacock v R (1911) 13 CLR 619, cited Pfennig v R (1995) 182 CLR 461, discussed R v Baskerville [1916] 2 KB 658, cited R v Berrill [1982] Qd R 508, cited R v Boardman [1975] AC 421, discussed R v Delgado-Guerra ex…
[1916] 2 KB 658 [1916] 2 KB 658
Citation 13 (Para 1)

…, the complainant’s sworn account or “story” of what had happened to her, and to do so in some “material particular”: R v Baskerville [1916] 2 KB 658, 667; R v Berrill [1982] Qd R 508, 522-524.…
[1894] AC 57 [1894] AC 57
Citation 14 (Para 1)

…ntervention; and, if so, with what motive or intention. The classic instance of this kind is, of course, Makin v Attorney-General for New South Wales [1894] AC 57. Frequent repetition of the well-known statement by Lord Herschell ([1894] AC 57, 65) of the two competing rules governing admissibility has perhaps…
[1975] AC 421 [1975] AC 421
Citation 15 (Para 1)

…ords appear to have had some influence in the High Court’s analysis of the basis of, and test for, admitting similar fact evidence. In R v Boardman [1975] AC 421 Lord Hailsham said (at 452):…
[1991] 2 AC 447 [1991] 2 AC 447
Citation 16 (Para 1)

…The second case is Director of Public Prosecutions v P [1991] 2 AC 447 in which Lord Mackay, having discussed the speeches in Boardman , said (at 460):…
[1946] KB 531 [1946] KB 531
Citation 17 (Para 1)

…vidence is admissible in cases where there is direct evidence of an accused’s guilt. Hoch , Boardman and P were all such cases, as was R v Sims [1946] KB 531, a case approved in Pfennig . The formulation of the test for admission may owe something to the context from which it came: a circumstantial case. It may…

Legislation Cited

Criminal Code Act 1899 (Qld)
1 mention
Criminal Offence Victims Act 1995 (Qld)
1 mention
Evidence Act 1977 (Qld)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Evidence Act 1997 (Qld)
1 mention

CITATION:	R v BAR [2005] QCA 80
PARTIES:	R v BAR (appellant)
FILE NO/S:	CA No 317 of 2004 DC No 141 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	29 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2005
JUDGES:	McPherson JA, Mackenzie and Chesterman JJ Separate reasons for judgment of each member of the Court, McPherson JA and Chesterman J concurring as to the orders made, Mackenzie J dissenting
ORDER:	1. Appeal allowed and convictions on counts 18 to 24 quashed 2. Re-trial ordered on those counts 3. Application for leave to appeal against sentence in respect of counts 1 to 17 refused
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – ADMISSIBILITY – GENERALLY – where the appellant was convicted on 17 counts of sexual misconduct against a girl under the legal age of consent who is his stepdaughter – where the appellant was further convicted on 7 counts of indecently dealing with another girl under the legal age of consent who is also his stepdaughter – where the trial judge admitted evidence given by one girl in relation to counts relating to the other girl – whether the trial judge erred in allowing similar fact evidence on the basis that it was ‘substantially similar’ – whether the trial judge erred in not exercising a discretion to exclude the evidence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – whether the sentence imposed was manifestly excessive Criminal Code Act 1899 (Qld) Criminal Offence Victims Act 1995 (Qld) Evidence Act 1997 (Cth) Carne v R [1997] QCA 176, cited Director of Public Prosecutions v P [1991] 2 AC 447, discussed Hoch v R (1988) 165 CLR 292, discussed Hooper v R [1999] QCA 310, discussed Makin v Attorney-General for New South Wales [1894] AC 57, discussed Meissner v R (1995) 184 CLR 132, cited Mitchell v R (1952) 36 CrAppR79, cited Peacock v R (1911) 13 CLR 619, cited Pfennig v R (1995) 182 CLR 461, discussed R v Baskerville [1916] 2 KB 658, cited R v Berrill [1982] Qd R 508, cited R v Boardman [1975] AC 421, discussed R v Delgado-Guerra ex parte Attorney-General [2001] QCA 266, cited R v Makin & Wife (1893) 14 NSWLR 1 (L), discussed R v Noyes [2003] QCA 564, cited R v O’Keefe [2000] 1 Qd R 564, discussed R v Riley [1997] QCA 277, cited R v S [2001] QCA 501, discussed R v Sims [1946] KB 531, cited
COUNSEL:	P E Nolan, with N Martin for the appellant M J Copley for the respondent
SOLICITORS:	Jason Buckland for the appellant Director of Public Prosecutions (Queensland) for the respondent