R v D

Case [2003] QCA 151 4 April 2003

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SUPREME COURT OF QUEENSLAND

CITATION:

R v D [2003] QCA 151

PARTIES:

R
v
D
(appellant)

FILE NO/S:

CA No 432 of 2002
DC No 319 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2003

JUDGES:

Davies and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, Davies JA and Mackenzie J concurring as to the orders made, Jerrard JA dissenting in part

ORDERS:

1. Allow the appeal
2. Set aside the conviction
3. Order a new trial

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where learned trial judge allowed admission of complainant’s out of court statement based on expert evidence that complainant had sufficient intelligence to form memories – where expert evidence also suggested that complainant’s ability to retrieve accurate memories was questionable due to contamination of memory by other sources – whether learned trial judge took too narrow a view of expert evidence in admitting the out of court statement

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where learned trial judge concluded that expert evidence usurped the role of the jury – where expertise of psychologist not challenged – whether expert evidence outside the experience and knowledge of the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where learned trial judge concluded at voir dire that expert evidence would not be admissible at trial as it would usurp the role of the jury – where defence counsel was effectively prevented from calling psychologist as a witness – where evidence of complainant’s mother essential to the formation of an opinion by psychologist at trial – whether verdict unreasonable or insupportable having regard to evidence

Criminal Code Act 1899 (Qld), s 668E
Evidence Act 1977 (Qld), s 9A, s 93A, s 98, s 130

Farrell v The Queen (1998) 194 CLR 286, followed
Murphy v The Queen (1989) 167 CLR 94, considered
R v Adams & Ross [1965] Qd R 255, considered
R v Cumner [1994] QCA 270; CA No 108 of 1994, 28 July 1994, followed
R v F. A. R. [1996] 2 Qd R 49, considered
R v Morris; ex parte Attorney General [1996] 2 Qd R 68, considered
R v Swaffield (1997-1998) 192 CLR 159, considered

COUNSEL:

T Carmody SC for the appellant
D L Meredith for the respondent

SOLICITORS:

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

DAVIES JA: This is an appeal against conviction. It is based on two grounds. They are:

"(1) Complainant's out of court statement tendered s 93A(1) Evidence Act 1977 (Qld) should not have been received into evidence.
(2) The jury's verdict should be set aside on the ground that it is unreasonable or…

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 D

Details

AGLC: R v D [2003] QCA 151
Case: [2003] QCA 151
Decision Date: 4 April 2003

CaseChat Overview and Summary

The case before the court involves an appeal against a conviction, where the appellant, D, was found guilty of an offence. The appeal centred around the trial judge's handling of expert evidence related to the credibility and reliability of the complainant's out of court statements. The trial judge allowed the admission of these statements, relying on expert evidence suggesting that the complainant had the intelligence to form accurate memories, despite other evidence indicating potential contamination of these memories. The court was tasked with determining whether the trial judge correctly exercised his discretion in admitting the out of court statements and whether the expert evidence was properly considered in the context of the jury's role in assessing credibility.

The central legal issues revolved around the trial judge's interpretation and application of the principles governing the admissibility of expert evidence, particularly in relation to the credibility of a complainant's out of court statements. The court had to decide whether the trial judge appropriately balanced the expert evidence concerning the complainant's memory capabilities, including the potential for contamination, against the need to prevent the expert from usurping the jury's role. Additionally, the court examined whether the exclusion of the psychologist's evidence at trial, which the trial judge deemed would usurp the jury's function, had an impact on the fairness and reasonableness of the verdict.

In examining the trial judge's approach, the court found that the judge had taken too narrow a view of the expert evidence by admitting the out of court statements without adequately considering the psychologist's assessment that the complainant's memory retrieval could be unreliable due to contamination. The court also noted that the trial judge's conclusion that the expert evidence would usurp the jury's role was not supported by the circumstances, as the psychologist's expertise was not challenged. The court concluded that the exclusion of crucial evidence from the psychologist, who was essential to forming an opinion on the complainant's credibility, rendered the verdict unreasonable and insupportable. Consequently, the appeal was allowed, the conviction set aside, and a new trial ordered.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the conviction

3. Order a new trial

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 D [2003] QCA 151

Most Recent Citation

R v FQ [2008] QCA 68

Cases citing this decision · 11 of 11 shown

R v Li
[2021] QDC 105 Para 20

…159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial.” [5][2016] QCA 264. [6][2003] QCA 151 at [62].…
R v Allen (a pseudonym)
[2020] QCA 233 Para 1

…visions to particular circumstances. [1] R v Morris; Ex parte Attorney-General [1996] 2 Qd R 68; R v FQ [2008] QCA 68; R v D [2003] 141 A Crim R 471; [2003] QCA 151. [2] R v D , supra ; R v T [1996] QCA 463.…
Queensland College of Teachers v El-Sayed
[2017] QCAT 330 Para 7

…ce as to the state of the complainant’s level of intelligence or reliability, or propensity to lie as at the date of her complaints.[6] [6] R v D [2003] QCA 151.…
R v Adcock
[2016] QCA 264 Para 38

…n or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion.” [69][2003] QCA 151 at [18]. Internal footnote omitted. [60]-[62].…
R v Gaz
[2016] QCA 229 Para 11

…arity as to time and circumstance in her second police statement also made it unfair to the appellant to receive it as evidence. [48] R v D [2003] QCA 151, [59]. [49] R v FAR [1996] 2 Qd R 49, 61. [50]See R v Cumner [1994] QCA 270.…
R v MFH
[2013] QDC 121

…In the case of the Queen v. D [2003] QCA 151, Jerrard, Justice of Appeals, whilst in dissent, but not on this point, at paragraph 60 to 62, relevantly said, under the heading, "Construction of these sections" "With respect to section 98 the term 'inexpedient' can mean 'not suitable, advisable, or judicious' (Coll…
Attorney-General for the State of Qld v Harvey
[2012] QSC 173 Para 1

…ts of justice that the statement should be admitted”. That phrase was considered by Davies JA in R v D. [26] At [17] and [18] Davies JA said: [26][2003] QCA 151.…
R v FQ
[2008] QCA 68 Para 1

…onfining his considerations to reliability, have been unduly influenced by remarks in two of them, R v FAR [3] and R v D .[4] [3][1996] 2 Qd R 49. [4][2003] QCA 151.…
Murphy & Murphy
[2007] FamCA 795

…cil, RN and YN (2007) 1 FLR 203 Re: W (Sex abuse : Standard of proof) (2004) FLC 93-162. DPP v A & BC Chewing Gum Ltd (1967) 2 All ER 504 R v D [2003] QCA 151 Re; M & R (Minors) (1996) 4 AER 329 at 249 Louth v Diprose (1992) 175 CLR 621 Re W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085 WK v SR (199…
R v Higgins
[2006] QDC 369 Para 1

…applicant to admit that evidence, under s 130.[30] There was some discussion of the approach to these sections in the judgment of Jerrard JA in R v D [2003] QCA 151. Jerrard JA referred to dictionary definitions of “inexpedient” and said that it would be inexpedient to admit statements under s 93A “where there is…
R v M
[2004] QDC 85 Para 1

…I was also referred to the more recent decision of the Court of Appeal in R v D [2003] QCA 151 where Davies JA said at para 18:…

View all 11 citing cases →

Cases cited in this decision · 8 of 8 shown

Festa v The Queen
[2001] HCA 72 Para 1

…ppellant's conviction it follows, in my opinion, that the conviction should be set aside. [7] R v Storey (1978) 140 CLR 364 at 376; Festa v The Queen (2001) 208 CLR 593 at [127], [206], [229].…
R v TKWJ
[2000] NSWCCA 246 Para 1

…D has laid with her again”, and that when J came home from school that day the following conversation occurred: [9]The decision in TKWJ v R (2002) 193 ALR 7, and the remarks at [8], [16], [81], and [111]-[112] therein, would have made that difficult.…
Farrell v The Queen
[1998] HCA 50 Para 1

…ility, and presumably the relevance, of such evidence upon the question which arises under either s 9A(1)(a) or s 9A(1)(b). [4]In Farrell v The Queen (1998) 194 CLR 286 at 299.…
R v Swaffield
[1998] HCA 1 Para 1

…With respect to s 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial. As the joint judgment of Toohey, Ga…
R v Cumner
[1994] QCA 270 Para 1

…rary, though obiter view was expressed by Fitzgerald P in R v F.A.R . [1996] 2 QdR 49 at 54 - 55; perhaps expanding on his earlier view in R v Cumner [1994] QCA 270; CA No 108 of 1994, 28 July 1994. However in that case both Pincus JA (at 61) and I disagreed with that view. My own statement in that case that the…
Murphy v The Queen
[1989] HCA 28 Para 1

…she gave so the question whether it was based on matters outside the experience and knowledge of a jury[6] was not considered. [6] Murphy v The Queen (1989) 167 CLR 94 at 111; Farrell v The Queen supra at 292 - 293, 300, 322.…
R v Storey
[1978] HCA 39 Para 1

…tance of that evidence was essential to the appellant's conviction it follows, in my opinion, that the conviction should be set aside. [7] R v Storey (1978) 140 CLR 364 at 376; Festa v The Queen (2001) 208 CLR 593 at [127], [206], [229].…
[1965] AC 595
[1965] AC 595 Para 1

…witness’ alcohol and drug abuse, and of an anti-social personality disorder. Gaudron J at 292 adopted a proposition of Lord Pearce in R v Toohey [1965] AC 595, 608 to the effect that medical evidence tending to show that a witness suffered from a disease, defect or abnormality of mind was admissible on the issu…

Legislation cited in this decision · 2

Evidence Act 1977 (Qld)
9A 2 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
668E 1 mention

CITATION:	R v D [2003] QCA 151
PARTIES:	R v D (appellant)
FILE NO/S:	CA No 432 of 2002 DC No 319 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2003
JUDGES:	Davies and Jerrard JJA and Mackenzie J Separate reasons for judgment of each member of the Court, Davies JA and Mackenzie J concurring as to the orders made, Jerrard JA dissenting in part
ORDERS:	1. Allow the appeal 2. Set aside the conviction 3. Order a new trial
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where learned trial judge allowed admission of complainant’s out of court statement based on expert evidence that complainant had sufficient intelligence to form memories – where expert evidence also suggested that complainant’s ability to retrieve accurate memories was questionable due to contamination of memory by other sources – whether learned trial judge took too narrow a view of expert evidence in admitting the out of court statement CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where learned trial judge concluded that expert evidence usurped the role of the jury – where expertise of psychologist not challenged – whether expert evidence outside the experience and knowledge of the jury CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where learned trial judge concluded at voir dire that expert evidence would not be admissible at trial as it would usurp the role of the jury – where defence counsel was effectively prevented from calling psychologist as a witness – where evidence of complainant’s mother essential to the formation of an opinion by psychologist at trial – whether verdict unreasonable or insupportable having regard to evidence Criminal Code Act 1899 (Qld), s 668E Evidence Act 1977 (Qld), s 9A, s 93A, s 98, s 130 Farrell v The Queen (1998) 194 CLR 286, followed Murphy v The Queen (1989) 167 CLR 94, considered R v Adams & Ross [1965] Qd R 255, considered R v Cumner [1994] QCA 270; CA No 108 of 1994, 28 July 1994, followed R v F. A. R. [1996] 2 Qd R 49, considered R v Morris; ex parte Attorney General [1996] 2 Qd R 68, considered R v Swaffield (1997-1998) 192 CLR 159, considered
COUNSEL:	T Carmody SC for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent