R v Demos - [2012] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Demos [2012] QCA 165

PARTIES:

R
v
DEMOS, James Eric
(applicant)

FILE NO/S:

CA No 21 of 2012
DC No 76 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

19 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2012

JUDGES:

Holmes and Gotterson JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – MATERIALITY AND COGENCY – GENERALLY – where the applicant was convicted after trial of one count of rape – where the applicant has appealed the conviction on the ground that the verdict of the jury was unreasonable – where the complainant's victim impact statement was not received until the day of the applicant’s sentencing – where the applicant applies to examine the complainant in relation to matters in the victim impact statement in the hope of discovering fresh evidence – where the applicant seeks to obtain from the complainant a list of all medical practitioners seen by her since early 2008 – where the court has power under s 671B(1) Criminal Code 1899 (Qld) to compel a witness to give evidence or order the production of any document relevant to the proceedings – whether it is necessary or expedient in the interests of justice for the court to order the examination of the complainant

Criminal Code 1899 (Qld), s 671B(1)

Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, cited
R v BBU[2009] QCA 385, considered
R v Cornwell [2009] QCA 294, considered
R v Evans; R v Pearce [2011] 2 Qd R 571; [2011] QCA 135, considered
R v GAL [2011] QCA 185, considered
R v HAU[2009] QCA 165, considered
R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, considered

COUNSEL:

R A East for the applicant
S P Vasta for the respondent

SOLICITORS:

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

HOLMES JA: Section 671B(1) of the Criminal Code enables this court, if it thinks it necessary or expedient in the interests of justice, to order any person who would have been a compellable witness at a criminal trial to attend and be examined before the court or any judge or any other person appointed by it, and to order the production of any document or other thing connected with the proceedings. The applicant was convicted, after a trial, of one count of rape. He has appealed his conviction on the ground that the verdict of the jury was unreasonable. He makes this application for an order that the complainant be examined in relation to “those matters referred to” in a victim impact statement given for the purposes of sentence and that she…

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 Demos

Details

AGLC: R v Demos [2012] QCA 165
Case: [2012] QCA 165
Decision Date: 19 June 2012

CaseChat Overview and Summary

In the case of R v Demos, the applicant appealed against a conviction for one count of rape. The applicant sought to appeal the verdict on the ground that it was unreasonable and applied to examine the complainant to uncover fresh evidence. The applicant hoped to obtain a list of all medical practitioners the complainant had seen since early 2008, aiming to discover information pertinent to the case. The legal issue before the court was whether it was necessary or expedient in the interests of justice for the court to order the examination of the complainant.

The court considered whether the examination of the complainant could lead to fresh evidence that was both material and cogent. It noted that the power to compel a witness to give evidence or order the production of any document relevant to the proceedings is provided under s 671B(1) of the Criminal Code 1899 (Qld). The court weighed the potential benefits of discovering new evidence against the interests of justice and the integrity of the judicial process. It concluded that the applicant had not demonstrated that the proposed examination would yield new evidence of sufficient quality to warrant a departure from the usual rules of evidence and procedure.

The application was refused. The court held that it was not necessary or expedient in the interests of justice to order the examination of the complainant. It found that the applicant had not shown that the examination would likely produce fresh evidence that was both material and cogent, and that the potential disruption to the complainant and the broader judicial process outweighed any possible benefit of new evidence. The conviction stood, and the appeal was dismissed.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Demos [2012] QCA 165
PARTIES:	R v DEMOS, James Eric (applicant)
FILE NO/S:	CA No 21 of 2012 DC No 76 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Criminal
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	19 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2012
JUDGES:	Holmes and Gotterson JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – MATERIALITY AND COGENCY – GENERALLY – where the applicant was convicted after trial of one count of rape – where the applicant has appealed the conviction on the ground that the verdict of the jury was unreasonable – where the complainant's victim impact statement was not received until the day of the applicant’s sentencing – where the applicant applies to examine the complainant in relation to matters in the victim impact statement in the hope of discovering fresh evidence – where the applicant seeks to obtain from the complainant a list of all medical practitioners seen by her since early 2008 – where the court has power under s 671B(1) Criminal Code 1899 (Qld) to compel a witness to give evidence or order the production of any document relevant to the proceedings – whether it is necessary or expedient in the interests of justice for the court to order the examination of the complainant Criminal Code 1899 (Qld), s 671B(1) Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, cited R v BBU[2009] QCA 385, considered R v Cornwell [2009] QCA 294, considered R v Evans; R v Pearce [2011] 2 Qd R 571; [2011] QCA 135, considered R v GAL [2011] QCA 185, considered R v HAU[2009] QCA 165, considered R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, considered
COUNSEL:	R A East for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent