R v Ernst - [2020] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ernst [2020] QCA 150

PARTIES:

R
v
ERNST, Kenneth Ralph
(appellant)

FILE NO/S:

CA No 264 of 2019
DC No 82 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 5 September 2019 (Moynihan QC DCJ)

DELIVERED ON:

17 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2020

JUDGES:

Sofronoff P and Mullins JA and Davis J

ORDERS:

1.   Appeal allowed.

2.   Verdicts of guilty are set aside.

3.   Re-trial of the counts on which the appellant was found guilty.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted on 11 of 15 counts of sexual offences against the same complainant – where the Crown case depended entirely upon the evidence of the complainant – where the defence case was that none of the charged acts happened – there the evidence of the complainant was not corroborated but it was supported to a degree by preliminary complaint evidence – where the complainant was under 16 years old for counts 1, 2, and 3 – where the appellant was 16 years of age or older for counts 4 through 15 – where the complainant admitted to having a consensual sexual relationship with the appellant when she was 17 – where the complainant admitted to having made false allegations of a sexual nature in the past – where a friend of the complainant has provided affidavit material on appeal where she deposes that the complainant had told her that she had “an affair” with the appellant – where the friend also gave evidence about the complainant’s propensity to lie – where the evidence of the friend went to the complainant’s credit and also to the question of consent – where the friend called prosecution authorities before the appellant’s trial in order to give the information to which she has now sworn – where she spoke to a police officer and related some of these matters to him, including that the complainant was having “an affair” with the appellant and that the complainant spoke of the relationship, and the appellant himself, in positive terms – where she deposes that she told police about the complainant’s proclivity to lie – where the police officer noted none of it and communicated nothing to prosecution authorities – where, as a result, none of this information was disclosed to the defence pursuant to the prosecution’s duty of disclosure – where there is evidence led on this appeal that the police officer’s attention was only upon facts that might assist the prosecution case – where the appellant submits that this breach has occasioned a miscarriage of justice – whether the prosecution failed to disclose information – whether the proviso is applicable – whether the failure to disclose the witness has occasioned a miscarriage of justice

Criminal Code (Qld), s 668E(1A)

Grey v The Queen (2001) 75 ALJR 1708

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 Ernst

Details

AGLC: R v Ernst [2020] QCA 150
Case: [2020] QCA 150
Decision Date: 17 July 2020

CaseChat Overview and Summary

In the case of R v Ernst, the appellant appealed against his conviction on 11 of 15 counts of sexual offences against the same complainant. The appeal was heard in the Court of Appeal, which was tasked with determining whether the appellant's conviction should be upheld or if a miscarriage of justice had occurred. The Crown's case relied entirely on the complainant's evidence, while the defence maintained that none of the alleged acts occurred. Although there was no corroboration of the complainant's evidence, it was supported to some extent by preliminary complaint evidence. The complainant was under 16 years old for counts 1, 2, and 3, and the appellant was 16 years of age or older for counts 4 through 15. The complainant admitted to having a consensual sexual relationship with the appellant when she was 17 and also admitted to making false allegations of a sexual nature in the past.

The Court of Appeal was required to decide whether the prosecution had failed to disclose information that was crucial to the defence's case, specifically, the evidence of a friend of the complainant who deposed that the complainant had told her about her "affair" with the appellant and that the complainant spoke of the relationship and the appellant in positive terms. The friend also gave evidence about the complainant's propensity to lie. The friend had contacted prosecution authorities before the appellant's trial to provide this information but was not believed by the police officer she spoke to. Consequently, none of this information was disclosed to the defence, breaching the prosecution's duty of disclosure. The appellant argued that this breach had resulted in a miscarriage of justice.

The Court of Appeal found that the prosecution had indeed failed to disclose information that was crucial to the defence's case. The court held that the failure to disclose this information had occasioned a miscarriage of justice, as it significantly undermined the credibility of the complainant's evidence and went to the question of consent. As a result, the appeal was allowed, the verdicts of guilty were set aside, and a re-trial of the counts on which the appellant was found guilty was ordered.

Orders

Orders of the court

1. Appeal allowed.

2. Verdicts of guilty are set aside.

3. Re-trial of the counts on which the appellant was found guilty.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ernst [2020] QCA 150
PARTIES:	R v ERNST, Kenneth Ralph (appellant)
FILE NO/S:	CA No 264 of 2019 DC No 82 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 5 September 2019 (Moynihan QC DCJ)
DELIVERED ON:	17 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2020
JUDGES:	Sofronoff P and Mullins JA and Davis J
ORDERS:	1. Appeal allowed. 2. Verdicts of guilty are set aside. 3. Re-trial of the counts on which the appellant was found guilty.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the appellant was convicted on 11 of 15 counts of sexual offences against the same complainant – where the Crown case depended entirely upon the evidence of the complainant – where the defence case was that none of the charged acts happened – there the evidence of the complainant was not corroborated but it was supported to a degree by preliminary complaint evidence – where the complainant was under 16 years old for counts 1, 2, and 3 – where the appellant was 16 years of age or older for counts 4 through 15 – where the complainant admitted to having a consensual sexual relationship with the appellant when she was 17 – where the complainant admitted to having made false allegations of a sexual nature in the past – where a friend of the complainant has provided affidavit material on appeal where she deposes that the complainant had told her that she had “an affair” with the appellant – where the friend also gave evidence about the complainant’s propensity to lie – where the evidence of the friend went to the complainant’s credit and also to the question of consent – where the friend called prosecution authorities before the appellant’s trial in order to give the information to which she has now sworn – where she spoke to a police officer and related some of these matters to him, including that the complainant was having “an affair” with the appellant and that the complainant spoke of the relationship, and the appellant himself, in positive terms – where she deposes that she told police about the complainant’s proclivity to lie – where the police officer noted none of it and communicated nothing to prosecution authorities – where, as a result, none of this information was disclosed to the defence pursuant to the prosecution’s duty of disclosure – where there is evidence led on this appeal that the police officer’s attention was only upon facts that might assist the prosecution case – where the appellant submits that this breach has occasioned a miscarriage of justice – whether the prosecution failed to disclose information – whether the proviso is applicable – whether the failure to disclose the witness has occasioned a miscarriage of justice Criminal Code (Qld), s 668E(1A) Grey v The Queen (2001) 75 ALJR 1708