R v Fielding & Moore - [2001] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION: R v Fielding and Moore [2001] QCA165

PARTIES: R
v
FIELDING, Jamie and
MOORE, Joel Augustus
(appellants)

FILE NO/S: CA No 352 of 2000
CA No 357 of 2000
DC No 61of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against convictions

ORIGINATING COURT: District Court at Gympie

DELIVERED ON: Judgment delivered 20 April 2001
Reasons for judgment delivered 4 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 April 2001

JUDGES Williams JA, White and Holmes JJ
Separate judgment of each member of the court each concurring as to the order made

ORDER: Appeals against convictions allowed. All convictions quashed and a new trial ordered

CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – S 7 CRIMINAL CODE PARTIES TO OFFENCES – co-accused convicted of offences against a 15 year old girl – whether consensual - whether prejudicial evidence disclosed by one accused’s counsel and cross-examined by prosecutor made fair trial impossible

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – prejudicial evidence against co-accuseds of a practice of enticing young woman with marijuana to provide sexual intercourse – evidence disclosed by one accused’s counsel and disallowed by trial judge with direction to jury – evidence later cross-examined by prosecutor without

objection by counsel or direction by trial judge – whether trial judge should have exercised discretion to discharge jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – TESTS - whether but for the admission of prejudicial evidence the conviction inevitable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – conduct of one accused’s counsel and prosecutor in referring to prejudicial evidence in cross-examination – conduct of prosecutor in failing to call witness – conduct of other accused’s counsel in failing to cross-examine complainant or put that intercourse consensual

Criminal Code, s 7
Evidence Act 1977, s 15

Crofts v The Queen (1996) 186 CLR 427 applied

COUNSEL: AJ Rafter for the appellant Fielding
JM McLennan for the appellant Moore
RG Martin for the respondent

SOLICITORS: Legal Aid Queensland for the appellants
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I agree with the reasons of Holmes J and with the order she proposes.

WHITE J: At the conclusion of the hearing of these appeals the Court ordered that the appeal be upheld, the convictions quashed and that there be a new trial. The reasons of the Court were to be published later. I have read the reasons of Holmes J and agree with them.

HOLMES J: The appellants were convicted of three counts of rape committed upon a fifteen year old girl. The Crown case was that two rapes, to which Moore was a s 7 Criminal Code party, were committed on the complainant by Fielding, while Fielding was…

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 Fielding & Moore

Details

AGLC: R v Fielding and Moore [2001] QCA 165
Case: [2001] QCA 165
Decision Date: 20 April 2001

CaseChat Overview and Summary

The case of R v Fielding & Moore involved two accused, Fielding and Moore, who were charged with offences against a 15-year-old girl. The key dispute was whether the sexual acts were consensual and whether the admission of prejudicial evidence led to a miscarriage of justice. The case was heard in the appellate court, which had to determine if the trial judge should have exercised discretion to discharge the jury or quash the convictions. The legal issues centred on whether the prejudicial evidence made the trial unfair and if the conduct of the legal practitioners warranted a new trial.

The court examined whether the prejudicial evidence, which involved a practice of enticing young women with marijuana for sexual intercourse, was properly handled. The trial judge disallowed this evidence but later, it was brought up in cross-examination by the prosecutor without objection or direction by the trial judge. The court considered if the trial judge should have exercised discretion to discharge the jury due to this prejudicial evidence. The court also assessed if the conviction was inevitable but for the admission of this prejudicial evidence, and if the conduct of the legal practitioners during the trial warranted a new trial.

The appellate court found that the prejudicial evidence was indeed admitted, and the conduct of the legal practitioners was problematic. The court held that the prejudicial evidence made the trial unfair, and the trial judge should have exercised discretion to discharge the jury. Additionally, the court concluded that the conduct of the legal practitioners, including the prosecutor's cross-examination and the other accused’s counsel's failure to properly challenge the evidence, warranted a new trial. The appeals against the convictions were allowed, all convictions were quashed, and a new trial was ordered.

Orders

Orders of the court

Appeals against convictions allowed. All convictions quashed and a new trial ordered

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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CITATION:	R v Fielding and Moore [2001] QCA165
PARTIES:	R v FIELDING, Jamie and MOORE, Joel Augustus (appellants)
FILE NO/S:	CA No 352 of 2000 CA No 357 of 2000 DC No 61of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against convictions
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	Judgment delivered 20 April 2001 Reasons for judgment delivered 4 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2001
JUDGES	Williams JA, White and Holmes JJ Separate judgment of each member of the court each concurring as to the order made
ORDER:	Appeals against convictions allowed. All convictions quashed and a new trial ordered
CATCHWORDS:	CRIMINAL LAW – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – S 7 CRIMINAL CODE PARTIES TO OFFENCES – co-accused convicted of offences against a 15 year old girl – whether consensual - whether prejudicial evidence disclosed by one accused’s counsel and cross-examined by prosecutor made fair trial impossible CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – prejudicial evidence against co-accuseds of a practice of enticing young woman with marijuana to provide sexual intercourse – evidence disclosed by one accused’s counsel and disallowed by trial judge with direction to jury – evidence later cross-examined by prosecutor without objection by counsel or direction by trial judge – whether trial judge should have exercised discretion to discharge jury CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – TESTS - whether but for the admission of prejudicial evidence the conviction inevitable CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – conduct of one accused’s counsel and prosecutor in referring to prejudicial evidence in cross-examination – conduct of prosecutor in failing to call witness – conduct of other accused’s counsel in failing to cross-examine complainant or put that intercourse consensual Criminal Code, s 7 Evidence Act 1977, s 15 Crofts v The Queen (1996) 186 CLR 427 applied
COUNSEL:	AJ Rafter for the appellant Fielding JM McLennan for the appellant Moore RG Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants Director of Public Prosecutions (Queensland) for the respondent