R v F - [1996] QCA 490

[1996] QCA 490

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 418 of 1996.

Brisbane

[R v. F]

THE QUEEN

(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…

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 F

Details

AGLC: R v F [1996] QCA 490
Case: [1996] QCA 490
Decision Date: 6 December 1996

CaseChat Overview and Summary

The case of R v F involved an appeal against both conviction and sentence by the appellant, who was convicted of several sexual offences, including indecent dealing and rape. The appellant argued that the trial judge gave an incorrect direction to the jury regarding the relevance of his decision not to give evidence. Specifically, he claimed that the judge suggested that the uncontradicted evidence of the complainant could prove the truth or reliability of that evidence. Additionally, the appellant applied for leave to appeal against his sentence. The Court of Appeal dismissed both the appeal against conviction and the application for leave to appeal against sentence.

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