R v C

Case [2000] QCA 385 22 September 2000

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SUPREME COURT OF QUEENSLAND

CITATION: R v C [2000] QCA 385

PARTIES: R
v
C
(Applicant/Appellant)

FILE NO/S: CA No 131 of 2000
DC No 216 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Maryborough

DELIVERED ON: 22 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 4 August 2000

JUDGES: McPherson and Thomas JJA, Ambrose J
Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDER: Appeal against conviction dismissed; application for leave to appeal against sentence granted; set aside the sentence of three years imprisonment and impose in lieu thereof a sentence of imprisonment for two years; declare that pre-sentence custody between 7 April 2000 and 13 April 2000 be deemed time already served under that sentence.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – no necessary inconsistencies as the circumstances of the alleged offences were different

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – STRIKING OUT AND WARNING THE JURY TO DISREGARD EVIDENCE – improper question by Crown Prosecutor – s 15(2)(a) Evidence Act

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – improper questioning by Crown Prosecutor whether could be corrected by direction of Trial Judge

CRIMINAL LAW – EVIDENCE – CONFESSION AND ADMISSIONS – COMPLAINTS – FIRST REASONABLE OPPORTUNITY

CRIMINAL LAW – EVIDENCE – CONFESSION AND ADMISSIONS – COMPLAINTS – ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT – whether complaint was of a sexual act

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDER – co-offender convicted of more counts but sentenced to lesser term of imprisonment

Drugs Misuse Act 1986 (Qld)
Evidence Act 1997 (Qld), s 15(2)(a)

Chidiac & Asfour v R (1991) 171 CLR 432, considered
Lowe v R (1984) 154 CLR 606, considered
M v R (1994) 181 CLR 487, considered
Mackenzie v R (1996) 190 CLR 348, considered
Postiglione v R (1997) 189 CLR 295, discussed
R v Campbell [1933] St R Qd 123, discussed
R v Ireland (1970) 126 CLR 321, discussed
R v Lovett [1986] 1 Qd R 52, discussed
R v Stoddart (1909) 2 Cr App R 217, discussed
R v Strassberger & Strassberger (CA Nos 456 & 457 of 1998; [1999] QCA 80), discussed

COUNSEL: R A East for appellant
C Heaton for respondent

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

McPHERSON JA: I have read and agree with the reasons of Ambrose J. The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be allowed and the sentence varied in the terms proposed by Ambrose J.

THOMAS JA: I have the advantage of having read the reasons…

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 C

Details

AGLC: R v C [2000] QCA 385
Case: [2000] QCA 385
Decision Date: 22 September 2000

CaseChat Overview and Summary

In this case, the appellant appealed against both his conviction and sentence. The appeal against conviction was dismissed, but the appeal against sentence was allowed, and the sentence was varied. The conviction related to offences of indecent assault and attempted buggery. The appeal against conviction centred on the alleged impropriety of a question asked by the Crown Prosecutor during cross-examination, which was held to be an error that could not be corrected by the trial judge’s direction. The appellant also argued that the verdict was unreasonable or insupportable, but the court found no necessary inconsistencies in the evidence when considering the circumstances of the alleged offences.

The court considered the nature of the alleged impropriety, whether it could be remedied by a direction from the trial judge, and whether the evidence was prejudicial to the appellant. It concluded that the impropriety was not curable and that the prejudicial effect of the evidence outweighed its probative value. However, the court also held that the error did not result in a miscarriage of justice because the circumstances of the alleged offences were different. The court further considered the evidence of the co-offender, who provided a similar account of the events, and found that the jury was entitled to reject this evidence.

The court also examined the evidence of a complaint of a sexual act made by the victim to a police officer. The court held that the evidence was admissible and relevant to the charges of indecent assault and attempted buggery. The court further held that the evidence was not inadmissible on the ground that it was prejudicial, as the prejudicial effect was not outweighed by its probative value. The court also held that the evidence was not inadmissible on the ground that it was obtained in breach of the appellant’s right to a fair hearing, as the appellant had not made a complaint at the first reasonable opportunity.

The appeal against sentence was allowed on the ground of disparity between the appellant’s sentence and that of his co-offender, who was convicted of more counts but sentenced to a lesser term of imprisonment. The court held that the appellant’s sentence of three years imprisonment was manifestly excessive and disproportionate to the co-offender’s sentence of two years imprisonment. The court varied the sentence to two years imprisonment and deemed the pre-sentence custody to be time already served under that sentence.

Orders

Orders of the court

Appeal against conviction dismissed; application for leave to appeal against sentence granted; set aside the sentence of three years imprisonment and impose in lieu thereof a sentence of imprisonment for two years; declare that pre-sentence custody between 7 April 2000 and 13 April 2000 be deemed time already served under that sentence.

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

Full text does not contain this section.

Citations

AGLC Citation

R v C [2000] QCA 385

Most Recent Citation

R v A [2000] QCA 520

Cases citing this decision · 5 of 5 shown

R v Miller
[2008] SASC 331 Para 2

…WASCA 105 at [47]; Hoys & Ors v The Queen [2002] WASCA 275 at [33]. [34], [42]; R v Hannes (2000) 158 FLR 359 at [107]-[112]; R v C [2000] QCA 385 at [39]; R v Ives [1973] Qd R 128.…
R v Cunningham
[2008] QCA 289

…d) Corrective Services Act 2006 (Qld) , s 497 Penalties and Sentences Act 1992 (Qld), s 160D R v AS [2004] QCA 220, cited R v C [2000] QCA 385, considered R v O [2001] QCA 40, considered R v WAA [2008] QCA 87, considered COUNSEL: S Kissick for the applicant R Pointing for the respondent SOLICITORS: Bradley Munt &…
R v Markuleski
[2001] NSWCCA 290

…R v AT [2000] NSWCCA 342 R v Barnett [2000] NSWCCA 283 R v Bell (UKCA 15 May 1997 unreported) R v Britton (UKCA 5 October 2000 unreported) R v C [2000] QCA 385 R v Carbone [2000] NSWCCA 387 R v Cilgram [1994] Crim LR 861 R v Clarke & Fletcher (UKCA 30 July 1997 unreported) R v Crisologo (1997) 99 A Crim R 178 R…
R v Noble
[2000] QCA 523 Para 1

…irections properly dealt with potential matters of concern: see R v LSS ,[3] R v C [4] and R v Byron .[5] [3][2000] 1 QdR 546, 549-550, [12]-[14]. [4][2000] QCA 385; CA No 131 of 2000, 22 September 2000, paras [3], [63]-[65]. [5][2000] QCA 177; CA No 331 of 1999, 16 May 2000, [19].…
R v A
[2000] QCA 520

…ed R v Aston-Brien [2000] QCA 211; CA No 439 of 1999, 2 June 2000, considered R v C [2000] QCA 385; CA No 131 of 2000, 22 September 2000, considered R v Crooks [1999] QCA 194; CA No 483 of 1998, 28 May 1999, followed R v D [1999] VSCA 148; CA No 245 of 1998, 23 September 1999, considered R v Doggett 1999] QCA 441…

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Cases cited in this decision · 8 of 8 shown

R v Strasberger and Strasberger
[1999] QCA 80

…(1909) 2 Cr App R 217, discussed R v Strassberger & Strassberger (CA Nos 456 & 457 of 1998; [1999] QCA 80), discussed COUNSEL: R A East for appellant C Heaton for respondent SOLICITORS: Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent…
Postiglione v the Queen
[1997] HCA 26 Para 1

…nt than upon W is such as to give rise to a legitimate sense of grievance on the part of the appellant ( Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295, 301). I agree with the orders proposed by Ambrose J.…
Mackenzie v The Queen
[1996] HCA 35 Para 1

…In Mackenzie v R (1996) 190 CLR 348 at 366 it was observed –…
M v the Queen
[1994] HCA 63 Para 1

…her upon the evidence properly before the jury it was open to it to be satisfied beyond reasonable doubt that the accused person was guilty. In M v R (1994) 181 CLR 487 it was held that in most cases a doubt experienced by an appellate court will be a doubt which a jury ought to have experienced. Of course in a case…
Chidiac v The Queen
[1991] HCA 4 Para 1

…t to allow a verdict to stand based upon the acceptance of such evidence would indeed be unsafe. In this respect I refer only to Chidiac & Asfour v R (1991) 171 CLR 432.…
R v Ireland
[1970] HCA 21 Para 1

…rial may properly lead to the conclusion that the trial as a whole had miscarried so that there should be an order for a new trial” ( R v Ireland (1970) 126 CLR 321 at 331 per Barwick CJ). It is not the object of that section to transform a number of minor irregularities none of which considered alone having regard t…
Lowe v R
[1984] HCA 46 Para 1

…n of a greater term upon the appellant than upon W is such as to give rise to a legitimate sense of grievance on the part of the appellant ( Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295, 301). I agree with the orders proposed by Ambrose J.…
[1968] 2 QB 433
[1968] 2 QB 433

…e jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries: R v Hunt [1968] 2 QB 433 at 436.” (Footnotes admitted)…

Legislation cited in this decision · 3

Drugs Misuse Act 1986 (Qld)
1 mention
Evidence Act 1977 (Qld)
1 mention
Evidence Act 1997 (Qld)
15(2)(a) 1 mention

CITATION:	R v C [2000] QCA 385
PARTIES:	R v C (Applicant/Appellant)
FILE NO/S:	CA No 131 of 2000 DC No 216 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	22 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2000
JUDGES:	McPherson and Thomas JJA, Ambrose J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDER:	Appeal against conviction dismissed; application for leave to appeal against sentence granted; set aside the sentence of three years imprisonment and impose in lieu thereof a sentence of imprisonment for two years; declare that pre-sentence custody between 7 April 2000 and 13 April 2000 be deemed time already served under that sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – no necessary inconsistencies as the circumstances of the alleged offences were different CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – STRIKING OUT AND WARNING THE JURY TO DISREGARD EVIDENCE – improper question by Crown Prosecutor – s 15(2)(a) Evidence Act CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – improper questioning by Crown Prosecutor whether could be corrected by direction of Trial Judge CRIMINAL LAW – EVIDENCE – CONFESSION AND ADMISSIONS – COMPLAINTS – FIRST REASONABLE OPPORTUNITY CRIMINAL LAW – EVIDENCE – CONFESSION AND ADMISSIONS – COMPLAINTS – ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT – whether complaint was of a sexual act CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDER – co-offender convicted of more counts but sentenced to lesser term of imprisonment Drugs Misuse Act 1986 (Qld) Evidence Act 1997 (Qld), s 15(2)(a) Chidiac & Asfour v R (1991) 171 CLR 432, considered Lowe v R (1984) 154 CLR 606, considered M v R (1994) 181 CLR 487, considered Mackenzie v R (1996) 190 CLR 348, considered Postiglione v R (1997) 189 CLR 295, discussed R v Campbell [1933] St R Qd 123, discussed R v Ireland (1970) 126 CLR 321, discussed R v Lovett [1986] 1 Qd R 52, discussed R v Stoddart (1909) 2 Cr App R 217, discussed R v Strassberger & Strassberger (CA Nos 456 & 457 of 1998; [1999] QCA 80), discussed
COUNSEL:	R A East for appellant C Heaton for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent