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R v D'Arcy

R v D'Arcy

Case [2005] QCA 292 16 August 2005

Appeal

Unreasonable and Unsupportable Verdict

Limitation Periods

Admissibility of Evidence

Compensatory Damages

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v D'Arcy [2005] QCA 292

PARTIES:

R
v
D'ARCY, William Theodore
(appellant/applicant)

FILE NO/S:

CA No 199 of 2004
DC No 1208 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2005

JUDGES:

McMurdo P, Keane JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

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 - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - where appellant was alleged to have committed a number of sex offences against children while working as a primary school teacher in the early 1970s - where the appellant had since left teaching and pursued a career in state parliament - where the appellant's political career had been brought to an end by other criminal charges relating to sexual offences involving children - where the appellant's political career and previous criminal convictions had received substantial media attention - where appellant applied to the trial judge pursuant to s 47 Jury Act 1995 (Qld) for permission to question potential jurors as to whether this pre-trial publicity had prejudiced them against him - where the request to question potential jurors was refused by the trial judge - whether the pre-trial publicity surrounding the appellant amounted to "special reasons for inquiry" as required by s 47 Jury Act 1995 (Qld)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY - where appellant was the subject of criminal proceedings arising out of charges for indecent dealing and wilful exposure - where the appellant had been the subject of adverse publicity arising out of previous trials for similar offences - where the appellant claimed that important evidence had been lost since the offences were alleged to have been committed more than 30 years ago - where application was made to the trial judge that a fair trial was impossible in the circumstances and that a permanent stay of proceedings should be granted - where this application for a permanent stay was refused - whether the trial judge had been correct to refuse the appellant's application for a permanent stay

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - where appellant submitted that evidence of one prosecution witness contradicted the evidence of the complainant to such an extent that the jury could not have been satisfied beyond reasonable doubt of the appellant's guilt - whether the resolution of the differences between the evidence of witnesses is a matter for the jury - whether the jury's decision to convict…

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'Arcy

Details

AGLC: R v D'Arcy [2005] QCA 292
Case: [2005] QCA 292
Decision Date: 16 August 2005

CaseChat Overview and Summary

The appellant, D'Arcy, sought to appeal against his conviction and sentence in relation to sex offences involving children. The case involved the appellant's alleged criminal acts while he was a primary school teacher in the early 1970s. D'Arcy had a significant political career following his teaching career, but this was cut short by other criminal charges related to sexual offences. The appellant's criminal history and political career had received substantial media attention, leading him to seek pre-trial questioning of potential jurors to assess if this publicity had prejudiced them against him. The trial judge refused this request, and D'Arcy's application for a permanent stay of proceedings was also refused.

The legal issues before the court were whether the trial judge's refusal to allow pre-trial questioning of potential jurors and the denial of the stay application were appropriate. The court considered whether the pre-trial publicity constituted "special reasons for inquiry" under section 47 of the Jury Act 1995 (Qld) and whether the trial judge was correct in denying the stay of proceedings. Additionally, D'Arcy contested the reasonableness of the jury's verdict and the severity of the sentence imposed.

The court found that the trial judge had not erred in refusing the pre-trial questioning of potential jurors, as there was no clear indication that the publicity had prejudiced them. Regarding the stay application, the court held that the trial judge was correct to deny it, as there was no evidence to suggest that a fair trial was impossible. The court also affirmed that the resolution of witness credibility and the jury's decision to convict were matters for the jury, not the appellate court. Finally, the court rejected D'Arcy's argument that the sentence was manifestly excessive, upholding the trial judge's sentencing decision.

The appeal against conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed. The trial judge's decisions regarding the pre-trial questioning of jurors and the stay of proceedings were upheld, as was the jury's verdict and the sentence imposed.

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.

Citations

AGLC Citation

R v D'Arcy [2005] QCA 292

Most Recent Citation

R v Mokbel [2009] VSC 342

Cases citing this decision · 7 of 7 shown

HCF v The Queen
[2023] HCA 35 Para 18

…tions from the trial judge to base their verdict on the evidence given before them on the trial and to disregard information otherwise acquired." [72][2005] QCA 292 at [28] (with whom McMurdo P and Dutney J agreed) (footnote omitted).…
Siriphanuruk v The State of Western Australia
[2023] WASCA 56 Para 7

…the trial judge to base their verdict on the evidence given before them on the trial and to disregard information otherwise acquired. [82] R v D'Arcy [2005] QCA 292 [28].…
Awad v The Queen
[2022] HCA 36 Para 17

…gard information otherwise acquired." [92] Gilbert v The Queen (2000) 201 CLR 414 at 420 [13] per Gleeson CJ and Gummow J, 425 [31] per McHugh J. [93][2005] QCA 292 at [28]; cf R v H [1995] 2 AC 596 at 613 per Lord Griffiths.…
Cocaris v Brisbane City Council
[2015] QDC 319 Para 1

…95. [24]1994 Explanatory Notes, p 100, which were singularly uninformative. [25]Qld Hansard Vol 328 p 7193 (D’Arcy – see R v D'Arcy [2005] QCA 292), p 7200 (Treasurer).…
R v Patel (No 4)
[2013] QSC 62

…2 QB 322, cited R v D’Arcy [2001] QCA 325, considered R v D’Arcy [2003] QCA 124, considered R v D’Arcy [2005] QCA 292, considered R v Dowling (1848) 7 St Tr NS 381, considered R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, considered R v Lewis [1994] 1 Qd R 613, cited R v Manson [1974] Qd R 191, considered R v…
R v Mokbel
[2009] VSC 342

…[15]See also R v WTD [2005] QCA 292, [28]; R v Jamal (2008) 72 NSWLR 258 [19]-[21] (Spigelman CJ); Skaf & Anor v R [2008] NSWCCA 303, [28], [33]; R v Vjestica [2008] VSCA 47, [33]-[34] (Maxwell P); R v McGee [2008] SASC 328, [148]-[150] (Doyle CJ); R v Glennon (No 2) (2001) 7 VR 631, 659-661 [66]-[67] (Winneke P,…
R v Ferguson; ex parte
[2008] QCA 227 Para 9

…o the provisions of s 47 of the Jury Act , and the safeguard which they afford an accused person, the learned primary judge erred. [40] Cf R v D'Arcy [2005] QCA 292.…

View all 7 citing cases →

Cases cited in this decision · 10 of 10 shown

Koehler v Cerebos (Australia) Ltd
[2005] HCA 15 Para 1

…ey-General (Qld) [2003] QCA 77 at [166]; (2003) 138 A Crim R 103 at 142. [6] The Queen v Glennon (1992) 173 CLR 592 at 614 - 615; Gilbert v The Queen [2005] HCA 15 at [13], [31]; (2000) 201 CLR 414 at 420, 425; R v Lewis [1994] 1 Qd R 613 at 617; R v Long; ex parte Attorney-General (Qld) [2003] QCA 77 at [166];…
R v D'Arcy
[2003] QCA 124 Para 1

…pellant's application on that earlier occasion were largely repeated in this case. [1] R v D'Arcy [2001] QCA 325; (2001) 122 A Crim R 268; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303.…
R v Long
[2003] QCA 77 Para 1

…ore, or be unable to follow, such directions. [5] The Queen v Glennon (1992) 173 CLR 592 at 605, 615 - 616; R v Long; ex parte Attorney-General (Qld) [2003] QCA 77 at [166]; (2003) 138 A Crim R 103 at 142. [6] The Queen v Glennon (1992) 173 CLR 592 at 614 - 615; Gilbert v The Queen [2005] HCA 15 at [13], [31]; (…
R v Dudko
[2002] NSWCCA 336 Para 1

…illing or unable to act in conformity with the directions given to them by the learned trial judge. [4] R v Lewis [1994] 1 Qd R 613 at 636; R v Dudko [2002] NSWCCA 336 at [18] - [21]; (2002) 132 A Crim R 371 at 374 - 375.…
R v D'Arcy
[2001] QCA 325 Para 1

…udge in this case whose reasons for rejecting the appellant's application on that earlier occasion were largely repeated in this case. [1] R v D'Arcy [2001] QCA 325; (2001) 122 A Crim R 268; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303.…
Gilbert v The Queen
[2000] HCA 15 Para 1

…7 at [166]; (2003) 138 A Crim R 103 at 142. [6] The Queen v Glennon (1992) 173 CLR 592 at 614 - 615; Gilbert v The Queen [2005] HCA 15 at [13], [31]; (2000) 201 CLR 414 at 420, 425; R v Lewis [1994] 1 Qd R 613 at 617; R v Long; ex parte Attorney-General (Qld) [2003] QCA 77 at [166]; (2003) 138 A Crim R 103 at 141 - 1…
R v Wrigley
[1998] QCA 412 Para 1

…son of the loss of evidence and the dimming of memories. [7] R v D'Arcy [2003] QCA 124 at [12]; (2003) 140 A Crim R 303 at 305 - 306. [8] R v Wrigley [1998] QCA 412; CA No 330 of 1998, 4 December 1998 at [12] - [15] per Chesterman J.…
R v Glennon
[1992] HCA 16 Para 1

…s adverse to an accused does not make it likely that they would deliberately ignore, or be unable to follow, such directions. [5] The Queen v Glennon (1992) 173 CLR 592 at 605, 615 - 616; R v Long; ex parte Attorney-General (Qld) [2003] QCA 77 at [166]; (2003) 138 A Crim R 103 at 142. [6] The Queen v Glennon (1992) 1…
Jago v District Court (NSW)
[1989] HCA 46 Para 1

…due to adverse publicity or delay could not be overcome by appropriate directions to the jury.[9] [9]Cf Jago v The District Court of New South Wales (1989) 168 CLR 23 at 47; R v Lewis [1994] 1 Qd R 613 at 634 - 640; The Queen v Glennon (1992) 173 CLR 592 at 598.…
Murphy v The Queen
[1989] HCA 28 Para 1

…particular juror or jurors"; and the cases where potential jurors generally may have been affected by adverse publicity "are exceptional cases". [2](1989) 167 CLR 94 at 103 - 104.…

Legislation cited in this decision · 1

Jury Act 1995 (Qld)
47 2 mentions (from Para 1)

CITATION:	R v D'Arcy [2005] QCA 292
PARTIES:	R v D'ARCY, William Theodore (appellant/applicant)
FILE NO/S:	CA No 199 of 2004 DC No 1208 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2005
JUDGES:	McMurdo P, Keane JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
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 - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - where appellant was alleged to have committed a number of sex offences against children while working as a primary school teacher in the early 1970s - where the appellant had since left teaching and pursued a career in state parliament - where the appellant's political career had been brought to an end by other criminal charges relating to sexual offences involving children - where the appellant's political career and previous criminal convictions had received substantial media attention - where appellant applied to the trial judge pursuant to s 47 Jury Act 1995 (Qld) for permission to question potential jurors as to whether this pre-trial publicity had prejudiced them against him - where the request to question potential jurors was refused by the trial judge - whether the pre-trial publicity surrounding the appellant amounted to "special reasons for inquiry" as required by s 47 Jury Act 1995 (Qld) CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY - where appellant was the subject of criminal proceedings arising out of charges for indecent dealing and wilful exposure - where the appellant had been the subject of adverse publicity arising out of previous trials for similar offences - where the appellant claimed that important evidence had been lost since the offences were alleged to have been committed more than 30 years ago - where application was made to the trial judge that a fair trial was impossible in the circumstances and that a permanent stay of proceedings should be granted - where this application for a permanent stay was refused - whether the trial judge had been correct to refuse the appellant's application for a permanent stay CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - where appellant submitted that evidence of one prosecution witness contradicted the evidence of the complainant to such an extent that the jury could not have been satisfied beyond reasonable doubt of the appellant's guilt - whether the resolution of the differences between the evidence of witnesses is a matter for the jury - whether the jury's decision to convict…