R v CX - [2005] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

R v CX [2005] QCA 222

PARTIES:

R
v
CX
(appellant/applicant)

FILE NO/S:

CA No 353 of 2004
DC No 394 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2005

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Judgment of the Court

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - AVAILABILITY AT TRIAL - MATERIALITY AND COGENCY - GENERALLY - where appellant had been convicted after trial of indecent dealing, maintaining a sexual relationship, sodomy and rape in relation to a child under the age of 16 years - where the appellant sought to adduce further evidence on appeal - where new evidence included statements suggesting that the appellant had been the victim of a criminal conspiracy - where evidence contained in affidavits replete with irrelevant assertion, speculation and hearsay - whether evidence had been permitted to be called at trial - whether new material meets the conditions of admissibility for fresh evidence on appeal

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE - where appellant had been convicted after trial of various offences - where appellant's twin brother claimed to have had acrimonious dealings with the learned trial judge when she was still practising as a barrister - where these dealings had taken place over 11 years before the trial - where it was alleged this gave rise to a risk of bias on behalf of the learned trial judge - where record showed that the learned trial judge was never asked to recuse herself from the trial - where the learned trial judge gave a comprehensive warning to the jury about the risks of convicting on the complainant's uncorroborated testimony - whether a reasonable person would consider that the learned trial judge had been unable to bring an unbiased mind to the discharge of her duties in relation to the trial

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - MISCONDUCT - where appellant had been convicted after trial of various offences - where, on one occasion, appellant noticed jurors standing near non-jurors during course of an adjournment and observed a non-juror point to the appellant and say "that's him" - where, on another occasion, a juror was discharged after admitting to discussing the case with her hairdresser - whether the learned trial judge should have discharged entire jury

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL…

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 CX

Details

AGLC: R v CX [2005] QCA 222
Case: [2005] QCA 222
Decision Date: 24 June 2005

CaseChat Overview and Summary

CX was convicted of multiple sexual offences against a child under 16 years of age and appealed against both the conviction and the sentence. The appeal was heard by the Queensland Court of Appeal. The appellant raised several grounds for appeal, including the admissibility of fresh evidence, alleged bias on the part of the trial judge, irregularities in the conduct of the jury, the safety of the verdict, and the severity of the sentence.

The court first considered whether the fresh evidence, which included allegations of a criminal conspiracy against the appellant, could be admitted. The evidence was found to be largely speculative, hearsay, and irrelevant, and therefore inadmissible. The court also examined the claim of bias on the part of the trial judge, but concluded that the record did not support the appellant's contention that the trial judge had been unable to bring an impartial mind to the trial. The court further assessed the allegations of jury misconduct and determined that the trial judge had acted appropriately in the circumstances. Finally, the court found that the verdict was safe and not unreasonable, and that the sentence imposed was not manifestly excessive.

In light of the above, the court dismissed the appeal against conviction and the application for leave to appeal against sentence. The appellant's conviction and sentence were upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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.

CITATION:	R v CX [2005] QCA 222
PARTIES:	R v CX (appellant/applicant)
FILE NO/S:	CA No 353 of 2004 DC No 394 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	24 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2005
JUDGES:	de Jersey CJ, Keane JA and Mullins J Judgment of the Court
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - AVAILABILITY AT TRIAL - MATERIALITY AND COGENCY - GENERALLY - where appellant had been convicted after trial of indecent dealing, maintaining a sexual relationship, sodomy and rape in relation to a child under the age of 16 years - where the appellant sought to adduce further evidence on appeal - where new evidence included statements suggesting that the appellant had been the victim of a criminal conspiracy - where evidence contained in affidavits replete with irrelevant assertion, speculation and hearsay - whether evidence had been permitted to be called at trial - whether new material meets the conditions of admissibility for fresh evidence on appeal CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE - where appellant had been convicted after trial of various offences - where appellant's twin brother claimed to have had acrimonious dealings with the learned trial judge when she was still practising as a barrister - where these dealings had taken place over 11 years before the trial - where it was alleged this gave rise to a risk of bias on behalf of the learned trial judge - where record showed that the learned trial judge was never asked to recuse herself from the trial - where the learned trial judge gave a comprehensive warning to the jury about the risks of convicting on the complainant's uncorroborated testimony - whether a reasonable person would consider that the learned trial judge had been unable to bring an unbiased mind to the discharge of her duties in relation to the trial CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - MISCONDUCT - where appellant had been convicted after trial of various offences - where, on one occasion, appellant noticed jurors standing near non-jurors during course of an adjournment and observed a non-juror point to the appellant and say "that's him" - where, on another occasion, a juror was discharged after admitting to discussing the case with her hairdresser - whether the learned trial judge should have discharged entire jury CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL…