R v Colagrande - [2018] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v Colagrande [2018] QCA 108

PARTIES:

R
v
COLAGRANDE, Cesidio
(appellant)

FILE NO/S:

CA No 37 of 2017
DC No 364 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 6 February 2017 (Kent QC DCJ)

DELIVERED ON:

5 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2017

JUDGES:

Sofronoff P and Gotterson JA and Henry J

ORDERS:

1.   Leave to adduce further evidence granted.

2.   Appeal allowed.

3.   Conviction quashed.

4.   Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted on a single count of unlawfully and indecently assaulting the complainant – where the appellant was a plastic surgeon whom the complainant had consulted for the purpose of undergoing a breast enlargement operation – where the complainant gave evidence that the appellant had pulled her close to him so that their crotches were touching, smacked her on the bottom and made sexual overtures in the course of a consultation – where the complainant gave evidence that the appellant discouraged her from undergoing a further operation, telling her, “you’re perfect just the way you are” – where the appellant gave evidence that the complainant had requested for the appellant to perform a further breast enlargement operation for free or to give the complainant a refund – where the central issue in the trial was the credit of the appellant and the complainant – where the complainant attended a conference on 24 January 2017, before the trial, with the Crown prosecutor and another Director of Public Prosecutions officer during the course of which she explained that she did not wish to proceed with the matter – where a file note made in the course of this conference was disclosed to the defence prior to the trial – where the defence counsel made a forensic decision not to use this information at trial – where the complainant also gave a statement to police on 16 December 2016 indicating that she did not wish to proceed with the trial and gave detailed reasons for this decision – where the statement by the complainant to police was not furnished to the defence until day five of the trial, after the evidence had concluded – whether the statement by the complainant to police on 16 December 2016 was relevant to her credit, such that the failure of the prosecution to disclose that statement to the defence until after evidence in the trial had concluded occasioned a miscarriage of justice

Criminal Code (Qld), s 590AB, s 590AH, s 590AJ

Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65, cited
R v Brown [1994] 1 WLR 1599; [1995] 1 Cr App R 191, cited
R v HAU[2009] QCA 165, applied
R v Rollason and Jenkins, ex parte Attorney-General [2008] 1 Qd R 85; [2007] QCA 65, cited

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 Colagrande

Details

AGLC: R v Colagrande [2018] QCA 108
Case: [2018] QCA 108
Decision Date: 5 June 2018

CaseChat Overview and Summary

The case of R v Colagrande involved an appeal against a conviction for a single count of unlawfully and indecently assaulting the complainant, who had consulted the appellant, a plastic surgeon, for a breast enlargement operation. The crux of the dispute was the credibility of the complainant and the appellant. The case was heard in the court of appeal.

The primary legal issue before the court was whether the late disclosure by the prosecution of a statement made by the complainant to police on 16 December 2016, in which she indicated that she did not wish to proceed with the trial, had prejudiced the appellant’s right to a fair trial and thereby constituted a miscarriage of justice. This issue turned on the relevance of the statement to the complainant's credibility and whether its late disclosure prevented the defence from adequately challenging her evidence.

The court held that the statement was indeed relevant to the complainant's credit and the failure to disclose it in a timely manner prejudiced the appellant's right to a fair trial. The court found that the late disclosure of the statement constituted a miscarriage of justice, as it denied the defence the opportunity to properly challenge the complainant's evidence and thereby undermined the fairness of the trial process. As a result, the appeal was allowed, the conviction was quashed, and a re-trial was ordered.

In conclusion, the court granted leave to adduce further evidence, allowed the appeal, quashed the conviction, and ordered a re-trial, emphasising the importance of timely disclosure in criminal proceedings to ensure a fair trial.

Orders

Orders of the court

1. Leave to adduce further evidence granted.

2. Appeal allowed.

3. Conviction quashed.

4. Re-trial ordered.

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 Colagrande [2018] QCA 108
PARTIES:	R v COLAGRANDE, Cesidio (appellant)
FILE NO/S:	CA No 37 of 2017 DC No 364 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 6 February 2017 (Kent QC DCJ)
DELIVERED ON:	5 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2017
JUDGES:	Sofronoff P and Gotterson JA and Henry J
ORDERS:	1. Leave to adduce further evidence granted. 2. Appeal allowed. 3. Conviction quashed. 4. Re-trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted on a single count of unlawfully and indecently assaulting the complainant – where the appellant was a plastic surgeon whom the complainant had consulted for the purpose of undergoing a breast enlargement operation – where the complainant gave evidence that the appellant had pulled her close to him so that their crotches were touching, smacked her on the bottom and made sexual overtures in the course of a consultation – where the complainant gave evidence that the appellant discouraged her from undergoing a further operation, telling her, “you’re perfect just the way you are” – where the appellant gave evidence that the complainant had requested for the appellant to perform a further breast enlargement operation for free or to give the complainant a refund – where the central issue in the trial was the credit of the appellant and the complainant – where the complainant attended a conference on 24 January 2017, before the trial, with the Crown prosecutor and another Director of Public Prosecutions officer during the course of which she explained that she did not wish to proceed with the matter – where a file note made in the course of this conference was disclosed to the defence prior to the trial – where the defence counsel made a forensic decision not to use this information at trial – where the complainant also gave a statement to police on 16 December 2016 indicating that she did not wish to proceed with the trial and gave detailed reasons for this decision – where the statement by the complainant to police was not furnished to the defence until day five of the trial, after the evidence had concluded – whether the statement by the complainant to police on 16 December 2016 was relevant to her credit, such that the failure of the prosecution to disclose that statement to the defence until after evidence in the trial had concluded occasioned a miscarriage of justice Criminal Code (Qld), s 590AB, s 590AH, s 590AJ Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65, cited R v Brown [1994] 1 WLR 1599; [1995] 1 Cr App R 191, cited R v HAU[2009] QCA 165, applied R v Rollason and Jenkins, ex parte Attorney-General [2008] 1 Qd R 85; [2007] QCA 65, cited