District Court at Brisbane – Date of Conviction: 30 October 2016
DELIVERED ON:
2 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
13 July 2016
JUDGES:
Gotterson and Morrison JJA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by jury of one count of indecent assault, two counts of indecent assault with a circumstance of aggravation and one count of rape – where the complainant’s mother was called as a witness at the appellant’s committal hearing and later at his trial – where the account which the complainant’s mother gave in evidence in chief at the trial regarding a telephone conversation with the complainant was different to the account which she gave on the same topic at the committal hearing –where the appellant contends that a miscarriage of justice occurred by reason of the way in which the trial judge directed the jury as to the use that could be made of the prior inconsistent statement – whether the trial judge misdirected the jury as to the use that could be made of the prior inconsistent statement – whether there was a miscarriage of justice in all of the circumstances
CRIMINAL LAW – APPEAL AND NEW TRIAL – EVIDENCE – CREDIBILITY – PRIOR INCONSISTENT STATEMENTS – DIRECTIONS TO JURY – where the complainant’s mother was called as a witness at the appellant’s committal hearing and later at his trial – where the account which the complainant’s mother gave in evidence in chief at the trial regarding a telephone conversation with the complainant was different to the account which she gave on the same topic at the committal hearing – where the witness admitted the making of the prior inconsistent statement and the accuracy of the committal hearing transcript – whether the prior inconsistent statement was proved by virtue of either s 18 or s 19 of the Evidence Act 1977 (Qld) – whether the prior inconsistent statement was admissible as evidence of the facts stated therein – whether the prior inconsistent statement was available to the jury to assess the consistency of the complainant’s preliminary complaint and, therefore, the complainant’s credit – whether the trial judge misdirected the jury as to the use that could be made of the prior inconsistent statement
Criminal Code 1899 (Qld), s 668E(1A) Evidence Act 1977 (Qld), s 18, s 19, s 101, s 102
Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498; [1935] NSWStRp 23, cited Birkett v AF Little Pty Ltd [1962] NSWR 492, cited Bull v The Queen (2000) 201…
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.
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Details
AGLC
R v Collins [2017] QCA 113
Case
[2017] QCA 113
Decision Date
CaseChat Overview and Summary
In this appeal, the appellant, Collins, contests his conviction and sentence on multiple counts of indecent assault and rape. The conviction was reached by a jury in the District Court of Brisbane, and the case now rests with the higher court to determine if there were any procedural errors that may have led to a miscarriage of justice. The primary issue before the court was whether the trial judge's direction to the jury concerning the use of a prior inconsistent statement made by the complainant's mother was erroneous and if this error led to a miscarriage of justice.
The court examined whether the trial judge appropriately instructed the jury on the admissibility and utility of the prior inconsistent statement under sections 18 and 19 of the Evidence Act 1977 (Qld). The complainant's mother had provided differing accounts of a telephone conversation with the complainant at the committal hearing and during the trial, and the appellant argued that the judge's direction on how the jury could use this statement was flawed. The court considered whether the prior inconsistent statement was admissible to assess the complainant's credibility and whether the judge's direction potentially misled the jury on this matter.
The court found that the trial judge did not err in directing the jury on the use of the prior inconsistent statement. The judge correctly applied the relevant sections of the Evidence Act, ensuring that the jury was aware of the circumstances under which the prior inconsistent statement could be considered. The court held that the judge's direction was accurate and did not result in a miscarriage of justice. Consequently, the appeal against the conviction and sentence was dismissed.
As a result of the court's decision, the conviction and sentence imposed by the District Court remain in effect. The appellant's appeal was dismissed, and no new trial was ordered.
Orders
Orders of the court
The appeal is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Before considering this ground in the context of the directions that were made, it is useful to provide an overview of the evidence. The appellant did not give or call evidence in his own defence and, as such, the evidence was confined to that which was adduced in the Crown case.The evidence at trial The appellant faced an indictment alleging one count of indecent assault (Count 1), two counts of indecent assault with a circumstance of aggravation (Counts 2 and 3) and one count of rape (Count 4). The trial took place in the District Court at Brisbane over four days commencing on 27 October 2014. The jury retired to commence their deliberations shortly after 1.00 pm on the third day and, at about the same time on the fourth day, returned a guilty verdict with respect to each count. The sentence imposed with respect to Count 4 was imprisonment for nine years and four months coupled with a serious violent offence declaration. Lesser terms of imprisonment were imposed with respect to the other counts.[2][2]The original Notice of Appeal included a ground to support an application for leave to appeal against sentence (“3. The sentence was manifestly excessive”), but it was not struck through in the Amended Notice of Appeal. This must have been an oversight because no submissions were advanced by either party, either in writing or orally, to support a challenge to the sentences that were imposed. If not, then it need only be said that no error of principle can be detected in those sentences and each accorded with a sound exercise of the sentencing discretion including, in the circumstances of this case, the making of a serious violent offence declaration. The offences were committed during a single episode on the evening of 11 January 2000 or in the early hours of the following day. The issue at trial was consent.[3][3]The appellant formally admitted that the complainant and he had engaged in sexual intercourse, including penile penetration of the complainant's vagina, on the evening of 11 January 2000 or the morning of 12 January 2000: Exhibit 21 (AB 173). At the time, the appellant was aged 61 and living on a yacht moored at a marina in Southport. He had placed an advertisement in a newspaper for a nanny to accompany his partner, their child and him on a sailing trip to the Whitsundays. The complainant saw the advertisement and telephoned the appellant to register her interest. Arrangements were made for her to attend for an interview the following day. For this purpose the complainant travelled by train from Burpengary to Nerang and then by bus from Nerang to Surfers Paradise. She was accompanied by her friend, Alisha Johnson, as well as Ms Johnson’s young son. After arriving at Surfers Paradise, they walked to Southport and met up with the appellant on his yacht. An interview of sorts took place, following which the complainant, Ms Johnson and her son walked to Main Beach for a swim before returning to the yacht. The appellant then took them to a club at the marina for a further conversation over drinks before the complainant, Ms Johnson and her son caught a taxi to Nerang to board a train for the journey home.