R v FP - [2007] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v FP [2007] QCA 97

PARTIES:

R
v
FP
(appellant)

FILE NO/S:

CA No 336 of 2006
DC No 112 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mount Isa

DELIVERED ON:

Orders delivered ex tempore on 14 March 2007
Reasons delivered on 30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2007

JUDGES:

Jerrard JA and Muir and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the applicant was convicted for unlawfully and indecently dealing with a child under the age of 12 – where the sentencing judge failed to direct on preliminary complaint and on hearsay – whether these misdirections resulted in a miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 93A, Pt 4A

Dhanhoa v The Queen (2003) 217 CLR 1, applied
Jones v The Queen (1997) 143 ALR 52, applied
R v Cox [1986] 2 Qd R 55, applied
RPS v The Queen (2000) 199 CLR 620, applied
TKWJ v The Queen (2002) 212 CLR 124, applied
Weiss v The Queen (2005) 224 CLR 300, applied

COUNSEL:

T D Martin SC, with J R Hunt for the appellant
M J Copley for the respondent

SOLICITORS:

Anderson Telford Lawyers for the appellant
Director of Public Prosecutions (Qld) for the respondent

JERRARD JA: On 1 December 2006 FP was convicted by a jury on a count alleging that on a date unknown between 31 December 1999 and 1 May 2000 at Cloncurry he unlawfully and indecently dealt with a child then under the age of 12 years. He was sentenced that day to 12 months imprisonment. He appealed against his conviction, alleging it is “unsafe and unsatisfactory”, and asked for an extension of time within which to apply for leave to appeal against sentence, and within which to add further grounds of appeal against his conviction. He was given that leave. Those further grounds of appeal complain that the learned trial judge erred in failing to direct the jury as to the use to be made of preliminary complaint evidence. They also complain that a miscarriage of justice resulted from the wrongful admission of hearsay evidence, concerning the findings of a medical examination of the complainant shortly after the date of the offence.

The complainant was FP’s niece. Her evidence was given by way of a video taped interview with police conducted on 18 April 2004, admitted pursuant s 93A of the Evidence Act 1977 (Qld), and a video tape of the complainant being cross-examined on the contents of that statement, that cross-examination being video recorded on 21 September 2006. It was admitted…

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 FP

Details

AGLC: R v FP [2007] QCA 97
Case: [2007] QCA 97
Decision Date: 30 March 2007

CaseChat Overview and Summary

The applicant, convicted of unlawfully and indecently dealing with a child under the age of 12, sought an appeal against his conviction. The appeal was grounded on alleged misdirections and non-directions by the sentencing judge. The case was heard by the Court of Appeal, which had to decide whether the alleged errors in the trial were so significant as to constitute a miscarriage of justice.

The central legal issues before the Court were whether the sentencing judge had failed to appropriately address the preliminary complaint made by the applicant and whether there was an omission to direct on the hearsay evidence. These potential misdirections could have influenced the outcome of the trial. The Court had to examine whether these alleged errors warranted a new trial or an appeal against the conviction.

In examining the appeal, the Court of Appeal focused on the potential impact of the alleged misdirections. The Court noted that the preliminary complaint, if not properly addressed, could have affected the fairness of the trial. Similarly, the failure to direct on the hearsay evidence might have led to an incorrect assessment of the credibility of witnesses. However, the Court held that the alleged misdirections did not result in a miscarriage of justice. The evidence against the applicant was substantial, and the alleged errors did not undermine the overall reliability of the trial process. Therefore, the Court dismissed the appeal.

The Court of Appeal upheld the conviction, finding that the alleged misdirections and non-directions did not prejudice the outcome of the trial. The applicant's conviction for unlawfully and indecently dealing with a child under the age of 12 was therefore confirmed.

Orders