[1996] QCA 490
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 418 of 1996.
Brisbane
[R v. F]
THE QUEEN
v.
F
(Applicant) Appellant
_____________________________________________________________________
Pincus J.A.
Thomas J.
White J.
_____________________________________________________________________
Judgment delivered 6 December 1996
Separate Reasons for Judgment of each member of the Court, all concurring as to the Orders made.
_____________________________________________________________________
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
APPEAL AGAINST CONVICTION DISMISSED.
_____________________________________________________________________
CATCHWORDS: Criminal - sexual offences - Weissensteiner direction - accused’s failure to give evidence - right of silence - uncontradicted evidence of complainant - discussion of Weissensteiner (1993) 178 C.L.R. 217.
Counsel:Mr S Hamlyn-Harris for the applicant/appellant.
Ms L Clare for the respondent.
Solicitors:Legal Aid Office for the applicant/appellant.
Queensland Director of Public Prosecutions for the respondent.
Hearing date: 22 November 1996.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 6 December 1996
The appellant, who was convicted of a number of sexual offences after a trial in the District Court, appeals against his conviction; there is also an application for leave to appeal against sentence. A total of 14 counts went to trial; a nolle prosequi was entered in respect of one and there were verdicts of not guilty in relation to three others. In the result there were five convictions of indecent dealing, three of wilfully exposing complainants to an indecent video tape, one of wilfully exposing a complainant to indecent pictures and all but two of the convictions related to a particular complainant who will for simplicity be called "the complainant". Each of the other two complainants was a person to whom the appellant exposed an indecent video tape.
The notice of appeal complains of what was described in argument as a "Weissensteiner" direction (see (1993) 178 C.L.R. 217); a second ground included in the notice of appeal was that the verdicts were inconsistent and unsafe, but that was not pressed. One is left, then, with the argument that the judge gave incorrect directions to the jury as to the relevance of the appellant not having given evidence in contradiction of the complainant’s version of events. The appellant neither gave nor called evidence.
The directions which are objected to were as follows.
"Within a criminal trial the onus of proof rests on the prosecution to prove the guilt of the accused person. There is no onus on an accused person to prove his or her innocence. The accused man in this trial chose not to give evidence.
An accused person is not under any legal compulsion to give evidence. The law allows but does not compel an accused person to give evidence at his trial.
Accordingly, when an accused person chooses not to give evidence, the rule is that no adverse inference should be drawn against him because he decided not to give evidence. Neither you nor I know why the accused man in this case decided not to give evidence and no provision is made in our system for the jury to…
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- R v F [1996] QCA 490
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- [1996] QCA 490
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CaseChat Overview and Summary
The legal issues the court had to decide included whether the trial judge's directions to the jury about the appellant's failure to give evidence were correct and whether the sentence imposed was manifestly excessive. The court found that the trial judge's directions were in accordance with the majority view in Weissensteiner and did not mislead the jury. Furthermore, the court concluded that the sentence, while possibly towards the higher end of the range, was not manifestly excessive considering the persistent offending against the child and the lack of remorse shown by the appellant.
Orders
Orders of the court
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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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