R v DM

Case [2006] QCA 79 21 March 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v DM [2006] QCA 79

PARTIES:

R
v
DM
(appellant)

FILE NO/S:

CA No 260 of 2005
DC No 2554 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2006

JUDGES:

Williams JA, Jerrard JA, McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. Set aside the convictions on counts 2 to 8 inclusive on the indictment and order a re-trial on each of those counts

CATCHWORDS:

CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- MISCARRIAGE OF JUSTICE -- PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath

CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath

CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- legal counsel are under an obligation to draw to the judge’s attention any relevant omission in directions given by the trial judge to the jury

Criminal Code 1899 (Qld), s 668E(1A), discussed
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A, cited
Evidence Act 1977 (Qld), s 21AW(2), s 93A, discussed

R v T N [2005] QCA 160; 153 A Crim R 129, quoted
Weiss v The Queen [2005] HCA 81, M50 of 2005, 15 December 2005, followed

COUNSEL:

H J C Cremin for the appellant
M J Copley for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: Section 21AW of the Evidence Act 1977 (Qld) is in mandatory terms; it applies, inter alia, whenever a child’s evidence is taken in a way provided for under sub-divisions 3 or 4 of Division 4A of the Act. The critical provision is sub-section (2) which is in terms:

“The judicial officer presiding at the proceeding must instruct the jury that –

(a) the measure is a routine practice of the court and that they should not draw…

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 DM

Details

AGLC: R v DM [2006] QCA 79
Case: [2006] QCA 79
Decision Date: 21 March 2006

CaseChat Overview and Summary

In the case of R v DM, the appellant was convicted of several charges including sexual offences. The appeal was against his conviction, focusing on whether the trial judge's directions to the jury were adequate and whether a substantial miscarriage of justice had occurred. The Queensland Court of Appeal heard the appeal. The primary legal issues the court needed to address were whether the trial judge's directions to the jury contained any significant omissions and whether there was enough evidence to support the complainants' accusations, which the appellant denied. The court also considered whether the absence of independent evidence corroborated the complainants' claims and the impact of the video recording of the complainants' evidence compared to the transcript-only evidence of other witnesses.

The court found that the trial judge did not adequately address the differing forms of evidence during the trial. The complainants' evidence was available on video, while other witnesses' evidence was only in transcript form, which significantly impacted the jury's ability to assess credibility through non-verbal cues. The court noted that legal counsel should have pointed out any omissions in the judge's directions. Furthermore, there was no independent evidence that corroborated the complainants' accusations, which the appellant denied under oath. The court held that these factors contributed to a substantial risk of a miscarriage of justice. In light of these findings, the court allowed the appeal, set aside the convictions on counts 2 to 8, and ordered a re-trial on each of those counts.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the convictions on counts 2 to 8 inclusive on the indictment and order a re-trial on each of those counts

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 DM [2006] QCA 79

Most Recent Citation

R v HAB [2006] QCA 80

Cases citing this decision · 16 of 16 shown

OKS v The State of Western Australia
[2018] WASCA 48 Para 4

…is an error of law requiring a new trial unless the proviso applies.[158] [158] R v Drake [2013] QCA 222; (2013) 233 A Crim R 588 [2], [30]; R v DM [2006] QCA 79 [26]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 490 [38]; R v BCL [2013] QCA 108 [8].…
Thompson v The Queen; The Queen v Thompson
[2016] ACTCA 12 Para 1

…In R v DM [2006] QCA 79, the Queensland Court of Appeal was satisfied that the trial judge had failed to direct the jury in accordance with s 21AW(2) of the Evidence Act , but declined to apply the proviso, noting that the case was essentially to be determined on credibility; as the jury had been required to ass…
R v Coss
[2015] QCA 33 Para 16

…ecisions of this Court.[14] [13]Respondent’s Summary of Argument, paragraph 11. [14] R v TN [2005] QCA 160; (2005) 153 A Crim R 129 at [87]; R v DM [2006] QCA 79 at [1]-[3], [26]; R v Hellwig [2006] QCA 179; [2007] 1 Qd R 17 at [12]-[14], [22]-[24]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 409 at [36], [37…
R v RAQ
[2014] QCA 261 Para 1

…ry and to try to ensure that all necessary directions are given”.[19] [18] R v AAR [2014] QCA 20 at [24], citing R v GAQ [2013] QCA 309, R v DM [2006] QCA 79, R v Michael [2008] QCA 33 and R v BCL [2013] QCA 108. [19] R v Doolan [2014] QCA 246 at [34].…
R v AAR
[2014] QCA 20 Para 1

…itself upon a review of the record that there has been no substantial miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (Qld).…
R v FAD
[2013] QCA 334

…AG [2001] QCA 516, cited R v DM [2006] QCA 79, cited R v GAQ [2013] QCA 309, considered R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, cited R v Witham [1962] Qd R 49, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited COUNSEL: The appellant appeared on his own behalf B J Power for the respond…
R v Bisht
[2013] QCA 238 Para 1

…iew of the record that there has been no substantial miscarriage of justice. See R v DM ;[30] R v Michael ;[31] R v BCL [32] and R v Little .[33] [30][2006] QCA 79, [26]. [31][2008] QCA 33, [38]. [32][2013] QCA 108, [8]. [33][2013] QCA 223, [24]…
R v Drake
[2013] QCA 222 Para 1

…nal Code 1899 (Qld), this Court determines there has been no substantial miscarriage of justice. See R v DM ;[1] R v Michael ;[2] R v BCL .[3] [1][2006] QCA 79, [26]. [2][2008] QCA 33, [38]. [3][2013] QCA 108, [8].…
R v GAQ
[2013] QCA 309 Para 1

…irregular, this Court is able to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice.[10] [8][2006] QCA 79, [26]. [9][2008] QCA 33, [38]. [10] R v Michael , [38]; R v BCL [2013] QCA 108, [8].…
R v BCL
[2013] QCA 108 Para 1

…e trial being irregular, this Court is able to conclude for itself upon its review of the record that there has been no miscarriage of justice.[3] [1][2006] QCA 79, [26]. [2][2008] QCA 33. [3]Above, [38].…
R v Kovacs
[2008] QCA 417

…[4] R v TN (2005) 153 A Crim R 129 at 147; R v HAB [2006] QCA 80; R v DM [2006] QCA 79; R v Hellwig [2007] 1 Qd R 17; R v SAW [2006] QCA 378.…
R v MBE
[2008] QCA 381

…21AW(2)(b) and (c) – whether a retrial should be ordered Evidence Act 1977 (Qld), s 21AW(2), s 93A R v DM [2006] QCA 79, cited R v HAB [2006] QCA 80, cited R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, considered R v SAW [2006] QCA 378, cited COUNSEL: R A East for the appellant D L Meredith for the respondent SO…
R v Michael
[2008] QCA 33 Para 1

…r the accused at trial to seek a direction in conformity with the provision. [3] R v TN (2005) 153 A Crim R 129 at 147; R v HAB [2006] QCA 80; R v DM [2006] QCA 79; R v Hellwig [2006] QCA 179; R v SAW [2006] QCA 378.…
R v SAW
[2006] QCA 378 Para 1

…tly made in light of this Court's recent decisions in R v HAB ;[1] R v DM ;[2] R v Hellwig .[3] [1][2006] QCA 80; CA No 259 of 2005, 9 March 2006. [2][2006] QCA 79; CA No 260 of 2005, 21 March 2006. [3][2006] QCA 179; CA No 318 of 2005, 26 May 2006.…
R v Hellwig
[2006] QCA 179 Para 1

…ober 2005 pursuant to subdiv 3 of Div 4A of Pt 2 of the Act. The purpose of that division and its effects was described by Jerrard J.A. in R. v. DM [2006] QCA 79. His Honour said (at [21]): “Division 4A was inserted in 2003, and its purposes included requiring that an affected child’s evidence (the evidence of a…
R v HAB
[2006] QCA 80 Para 1

…In R v DM [2006] QCA 79, I dealt with the obligation on a trial judge of complying with s 21AW of the Evidence Act 1977 (Qld) in circumstances such as existed in this case. I will not repeat here what I said there, but I would again emphasise the duty on a trial judge of directing in the clear and simple terms o…

View all 16 citing cases →

Cases cited in this decision · 2 of 2 shown

Weiss v The Queen
[2005] HCA 81 Para 1

…ded that in that case the proviso could be applied, but it may be significant that it came before the decision of the High Court in Weiss v The Queen [2005] HCA 81. That decision makes it clear that in order to be able to apply the proviso the appeal court must make its own independent assessment of the evidence…
R v TN
[2005] QCA 160

…, s 668E(1A), discussed Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A, cited Evidence Act 1977 (Qld), s 21AW(2), s 93A, discussed R v T N [2005] QCA 160; 153 A Crim R 129, quoted Weiss v The Queen [2005] HCA 81, M50 of 2005, 15 December 2005, followed COUNSEL: H J C Cremin for the appellant M J Copley for t…

Legislation cited in this decision · 4

Criminal Law (Sexual Offences) Act 1978 (Qld)
4A 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
21AW(2) 2 mentions (from Para 1)
Evidence (Protection of Children) Amendment Act 2003 (Qld)
60 1 mention (from Para 1)
Jury Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	R v DM [2006] QCA 79
PARTIES:	R v DM (appellant)
FILE NO/S:	CA No 260 of 2005 DC No 2554 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2006
JUDGES:	Williams JA, Jerrard JA, McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Set aside the convictions on counts 2 to 8 inclusive on the indictment and order a re-trial on each of those counts
CATCHWORDS:	CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- MISCARRIAGE OF JUSTICE -- PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- appeal against conviction -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- trial evidence given by complainants was recorded by video but evidence of other witnesses was only available in transcript form -- cross-examination raised matters relevant to credibility -- no independent evidence corroborating or making more likely the complainants’ accusations which were denied on oath CRIMINAL -- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION -- APPEAL AND NEW TRIAL -- PARTICULAR GROUNDS -- MISDIRECTION AND NON-DIRECTION -- non-application of "proviso" that no substantial miscarriage of justice has actually occurred -- legal counsel are under an obligation to draw to the judge’s attention any relevant omission in directions given by the trial judge to the jury Criminal Code 1899 (Qld), s 668E(1A), discussed Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A, cited Evidence Act 1977 (Qld), s 21AW(2), s 93A, discussed R v T N [2005] QCA 160; 153 A Crim R 129, quoted Weiss v The Queen [2005] HCA 81, M50 of 2005, 15 December 2005, followed
COUNSEL:	H J C Cremin for the appellant M J Copley for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondent