R v FAW

[2020] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAW [2020] QCA 16

PARTIES:

R
v
FAW
(appellant)

FILE NO/S:

CA No 107 of 2019
DC No 59 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 10 August 2018 (Burnett DCJ)

DELIVERED EX TEMPORE ON:

13 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2020

JUDGES:

McMurdo and Mullins JJA and Boddice J

ORDERS:

1.   The appeal be allowed.

2.   The conviction be quashed.

3.   A retrial be ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of unlawful assault, doing bodily harm – where the victim was the appellant’s ex-partner – where evidence was admitted of four prior convictions of the appellant for offences of violence against a woman who was then his partner – where, in one of the offences, the appellant had also assaulted three children before hitting his then partner in the face with an open hand – where the appellant argued that none of this evidence was admissible – where the respondent argued that all of this evidence was admissible, but conceded that the details of the conviction where the appellant had assaulted children should not have been disclosed to the jury – where the potential for a misuse of that evidence resulted in a miscarriage of justice

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited

COUNSEL:

J Crawford for the appellant
P J McCarthy QC for the respondent

SOLICITORS:

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

McMURDO JA:  The appellant was charged with an offence of unlawful assault, doing bodily harm and with the circumstance that he was armed with an offensive instrument.  The jury convicted him on that charge, save for the circumstance of aggravation.  He was sentenced to a term of 12 months’ imprisonment with immediate release on parole.

The appellant and the complainant had been in a domestic relationship some years before the event in question, which was in 2017.  From time to time they continued to keep company under what the complainant described as a friendship.

The appellant, the complainant and her children went fishing at a place where they camped overnight.  This was not far from her house, but his car was needed to take everything which was required for the trip.  On that evening, after the children had gone to sleep in the tent, the appellant and the complainant argued and he left in his car.  The next morning, after the complainant had cooked breakfast and had gone back to sleep, she awoke to see the appellant and her children apparently packing the car.  She asked why he was doing that and an argument followed.  On her evidence, he grabbed her by the face causing her to fall to the ground, after which there were two blows to the right side of her head, which felt like a fist.  On her evidence, this occurred in front of her children.

The appellant then drove the complainant and her children home, where the complainant called the police after he had left.

Before the trial the prosecution applied to lead evidence of prior convictions of the appellant for offences of violence against a woman who was then his partner.  There were four convictions, involving offences committed in 2003, 2007, 2008 and 2011.  In most, but not all of them, the appellant was affected by alcohol.  In most, but not all of them, children had been present.  Significantly, in one of them, the 2007 offence, the appellant had also assaulted each of three children before hitting his then partner in the face with an open hand.

The trial judge ruled that the evidence of these convictions was admissible.  He reasoned that there were “significant similarities … between the previous offending and the subject offending”, from which it followed, he said, that the evidence had a “very strong degree of probative force” and that it was “prima facie admissible”.  His Honour then held that there was “no reasonable of the similar fact evidence [which was] consistent with the innocence of the defendant”.

For the appellant it is argued that none of this evidence was admissible, and that the appellant thereby lost the chance of an acquittal.

The respondent argues that all of this evidence was admissible, except in that case of the 2007 offence, from which the jury learnt that the appellant had assaulted children.  For the respondent, it is conceded that that aspect of the 2007 offending ought not to have been disclosed to the jury in this case, where there was no suggestion in the Crown case that either of the children had been assaulted.  The respondent properly concedes that at least this part of the evidence had no probative value which could warrant its admission, and that the potential for a misuse of that evidence resulted in a miscarriage of justice.  There is no argument for the application of the proviso.

At least in that respect, it is our view that the appellant has established that his appeal should succeed.  Consequently, it is unnecessary for this Court in this appeal to rule upon the admissibility of the other evidence of his prior convictions, and it should not be thought that in allowing the appeal on this particular basis, this Court is expressing any view upon whether the other evidence of prior convictions was properly admitted.  For a retrial, the prosecution should give careful consideration to whether any of the evidence is admissible, according to Pfennig v The Queen (1995) 182 CLR 461, and to the appellant’s outline of argument on that question in this appeal. Similarly, it is unnecessary to express any view on the appellant’s other grounds of appeal, all of which were argued to the end of obtaining a retrial.

The order will be that the appeal is allowed.  The conviction is quashed and a retrial is ordered.

MULLINS JA:  I agree.

BODDICE J:  I agree.