R v Demeter - [1994] QSC 8

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 254 of 1994

Brisbane

[R v. Demeter]

Before Macrossan CJ
Pincus JA
Mackenzie J

THE QUEEN

v.

FRANK TIBOR DEMETER

Judgment delivered 09/02/1994

Separate reasons for judgment of each member of the Court, Pincus JA and Mackenzie J concurring as to the order made, the Chief Justice dissenting.
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APPEAL DISMISSED
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CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL - Indecent dealing - child at slumber party indecently dealt with during night by adult male - complainant and two other girls present at party gave evidence as to appearance of accused - complainant and two witnesses asked to make dock identification - all identified appellant as the offender - judge made warning to jury - whether dock identification should have been made - whether vitiated trial.
Britten (1988) 51 S.A.S.R. 567.
CRIMINAL LAW - APPEAL AND NEW TRIAL - Indecent dealing - no evidence that anyone apart from appellant and owner of house could have committed offence - owner with wife - appellant gave no evidence at trial - whether trial judge was entitled to give the jury a Weissensteiner direction - whether directions actually given were appropriate.
Weissensteiner (1993) 178 C.L.R. 217

Counsel:Ms L Clare for the Crown.
Mr A Rafter for the appellant.

Solicitors:Director of Prosecutions for the Crown.
Legal Aid Office for the appellant.

Date of hearing: 30/08/1994.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 09/02/1995

Two grounds were argued on this appeal - that dock identification should not have been permitted and that an incorrect direction was given to the jury upon the use which could be made of the appellant's failure to give evidence.
The appellant had been charged with the commission of three acts of indecency performed upon a nine year old girl. The events were alleged to have taken place in the house of a Mr and Mrs Trzcinski in the early hours of the morning when a number of young girls stayed to sleep after attending a party there. Although the appellant did not give evidence at the trial it was not in contest that he also had stayed at the house for the night.
           The complainant and other young girls slept in what was described as a spare room downstairs having retired to bed quite late at some time about 2.00am or 3.00am. The events charged were alleged to have occurred between that time and about 6.30am when the household commenced to stir again.   The exact times when the acts complained of took place could not be accurately established.
           Near the downstairs room which has been referred to was another room described as the pool room presumably because it contained a pool table. The complainant and another girl, Crystle, said they saw the appellant dressed and sitting in this room when they got up at about 6.30am to go upstairs.
           Amongst the group of girls who had slept in the spare room downstairs there was one, Julia, who…

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 Demeter

Details

AGLC: R v Demeter [1994] QSC 8
Case: [1994] QSC 8
Decision Date: 9 February 1994

CaseChat Overview and Summary

The case of R v Demeter involved an appeal against the conviction of Frank Tibor Demeter for three counts of indecent dealing with a child under the age of 12 years. The appeal raised two main issues: the propriety of allowing a dock identification of the appellant and the correctness of a direction given to the jury regarding the relevance of the appellant not having given evidence. The appeal was dismissed by the Supreme Court of Queensland.

The first issue concerned the dock identification of the appellant, which the trial judge allowed despite the dangers associated with such identifications. The Court held that there is a discretion to admit dock identification evidence in appropriate circumstances, particularly when there is strong evidence apart from dock identification that the person accused was the offender. In this case, the Court found that the trial judge's decision to allow dock identification was permissible and a sound course, as long as the right directions were given to the jury regarding its value.

The second issue involved the trial judge's direction to the jury regarding the relevance of the appellant not having given evidence. The judge gave an extensive direction, which the appellant argued was inappropriate and led the jury into error. The Court considered the High Court's decision in Weissensteiner v. The Queen (1993) 178 C.L.R. 217, which provided guidance on when a direction about the failure to give evidence may be appropriate. The Court held that the judge was entitled to give such a direction in this case and that the directions given, despite some deficiencies, did not make a significant difference to the result of the jury's deliberations. The Crown case was strong, and the only concrete suggestion pressed by the appellant's counsel at the trial was unsupported by any evidence.

Orders