R v Demeter - [1995] QCA 8

THE COURT OF APPEAL [1995] QCA 008

SUPREME COURT OF QUEENSLAND

C.A. No. 254 of 1994

Brisbane [R v. D] Before Macrossan CJ

Pincus JA
Mackenzie J

THE QUEEN

v.
D

______________________________________________________________

Macrossan C.J.
Pincus J.A.
Mackenzie J.

______________________________________________________________
Judgment delivered 09/02/1995
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.
APPEAL DISMISSED
______________________________________________________________

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 T 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, C, 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…

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.

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Details

Case: [1995] QCA 8
Decision Date: 9/02/1995

CaseChat Overview and Summary

The case of R v Demeter involved an appeal against the conviction of the appellant, Demeter, for indecent dealing with a child. The appeal raised two main issues: the propriety of allowing a dock identification and the correctness of a direction given to the jury regarding the relevance of the appellant not having given evidence. The Court of Appeal, consisting of Macrossan CJ, Pincus JA, and Mackenzie J, delivered their judgment on February 9, 1995. Pincus JA and Mackenzie J concurred as to the order made, while Macrossan CJ dissented.

The Court of Appeal found that the trial judge had properly exercised his discretion in allowing the dock identification, as there was strong independent evidence implicating the appellant as the offender. The Court also held that the trial judge was entitled to give a Weissensteiner direction, but the manner in which it was given led the jury into error, causing a mistrial. The Court of Appeal allowed the appeal and ordered a new trial.

The majority of the Court of Appeal concluded that the Weissensteiner direction should not have been attempted in this case, as it would have been wiser to adhere to the standard observation that the absence of evidence from the defence meant that the evidence emerging in the Crown case was left uncontradicted by defence evidence. The summing up upon this aspect would have been confusing to the jury and had the potential to mislead them into inferring guilt from the appellant's failure to give evidence. The Court held that the mistrial could not be saved by the application of the proviso, and the appeal should be allowed, the verdict and conviction set aside, and a new trial ordered.

Orders