R v Delgado-Guerra

[2001] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

R v Delgado-Guerra; ex parte A-G  [2001] QCA 266

PARTIES:

R
v
DELGADO-GUERRA, Carlos
(appellant)

FILE NO/S:

PARTIES: 

CA No 324 of 2000
DC No 1143 of 2000

R
v
DELGADO-GUERRA, Carlos
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

DIVISION:

CA No 338 of 2000
DC No 1143 of 2000

Court of Appeal

PROCEEDING:

Appeal against conviction; sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2001

JUDGES:

McMurdo P, Thomas JA and Helman 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.   The Attorney-General’s appeal is allowed.  The sentences at first instance are varied by replacing the sentences on counts 2 and 5 with sentences of 15 years imprisonment.  The declaration of serious violent offence should be set aside and replaced by declaration that the conviction on count 6 is a conviction of a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – BURGLARY AND LIKE OFFENCES - OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – where appellant convicted of breaking and entering a dwelling house with intent, rape and sexual assault

CRIMINAL LAW – EVIDENCE – SIMILAR FACT – ADMISSIBILITY GENERALLY – whether propensity evidence properly admitted – purposes served by the reception of propensity evidence – purposes included identifying offender and rebutting innocent explanation for his fingerprints near point of entry – whether probative value outweighed the prejudicial effect – adequacy of evidence to pass the test in Pfennig – no need for striking similarity in all respects

CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – RELEVANCE – PROOF OF IDENTITY OF THE ACCUSED – GENERALLY – whether a direction must be given such that the jury must be satisfied beyond a reasonable doubt of the propensity evidence before it can be used to support an inference of guilt – where the identify of the perpetrator is in question – ‘signature test’ rejected – whether need for separate proof beyond reasonable doubt of each similar fact when the purpose of the evidence is to support the identification of the accused as the perpetrator –McGranaghan test rejected – whether propensity evidence should be regarded as an indispensable intermediate step in the reasoning process towards an inference of guilt – where such direction need not be given and the propensity evidence is to be regarded as a strand in assisting to identify the offender and not a separate link which itself proves the identity of the offender

EVIDENCE – ADMISSIBILITY AND RELEVENCY – HEARSAY STATEMENTS – whether admissions of appellant made by his counsel on earlier plea of guilty were admissible to prove earlier incident – whether counsel an agent with ostensible authority to make statements on the appellants behalf – prima facie admissible although the truth of such admissions might be rebutted

CRIMINAL LAW…