R v FQ - [2008] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v FQ [2008] QCA 68

PARTIES:

R
v
FQ
(appellant)

FILE NO/S:

CA No 227 of 2007
DC No 200 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

28 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2008

JUDGES:

McMurdo P, Holmes and Muir JJA
Separate reasons for each member of the court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where three written statements from interviews with complainant child were admitted into evidence under s 93A of the Evidence Act – where no record of police questions – whether trial judge correctly exercised discretion under s 98 and s 130 of the Evidence Act in not excluding statements – whether s 93A Evidence Act statements must be of “demonstrable unreliability” to be excluded under s 98 Evidence Act – whether “interests of justice” favour exclusion of the s 93A statements

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – where discrepancies in complainant’s account as to details and times of offences – where some supporting evidence for complainant’s evidence – whether open to jury to convict on all the evidence

Gately v The Queen (2007) 241 ALR 1; [2007] HCA 55, considered
R v D [2003] QCA 151, considered
R v FAR [1996] 2 Qd R 49; CA No 1 of 1995, 4 August 1995, considered
R v Morris; ex parte Attorney-General [1996] 2 Qd R 68; CA No 390 of 1994, 15 March 1995, considered

Criminal Code Act 1899 (Qld), s 590AA
Evidence Act 1977 (Qld), s 93A, s 98, s 130

COUNSEL:

B G Devereaux for the appellant
A J Edwards for the respondent

SOLICITORS:

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

McMURDO P: I agree with Holmes JA’s reasons for dismissing the appeal against conviction.

I wish to add some observations, primarily about the exercise of the discretion given under the Evidence Act 1977 (Qld) (“the Act”) to judges to exclude a statement made by a child or intellectually impaired person and admitted in evidence under s 93A of the Act.

The discretion under s 98 of the Act is broad in its terms. The s 93A statement may be excluded “if for any reason it appears to [the court] to be inexpedient in the interests of justice that the statement should be admitted”. Section 130 of the Act also gives a court in a criminal proceeding the broad power “to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence”.

In a pre-trial application, the primary judge ordered that the complainant's s 93A statements could be tendered at trial.…

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 FQ

Details

AGLC: R v FQ [2008] QCA 68
Case: [2008] QCA 68
Decision Date: 28 March 2008

CaseChat Overview and Summary

The case of R v FQ came before the court as an appeal against conviction and sentence. The respondent had been convicted of various offences of sexual penetration against a child. The appeal raised questions about the admissibility of certain evidence and the sufficiency of the evidence to sustain the conviction.

The legal issues in the appeal centred on the trial judge’s exercise of discretion in admitting three written statements from interviews with the child complainant under sections 93A and 98 of the Evidence Act. The defence argued that the absence of a recording of the police interviews rendered the statements unreliable, and that they should have been excluded under section 98 of the Evidence Act. The appeal also questioned whether the interests of justice required the exclusion of the statements, and if the jury was open to convict on the evidence presented.

The court examined the statutory provisions and found that the trial judge correctly exercised their discretion in admitting the statements. The court noted that while the absence of a recording was a factor, it did not automatically render the statements inadmissible. The court also held that the threshold for exclusion under section 98 of the Evidence Act was higher than simply being of questionable reliability; it required the statements to be of demonstrable unreliability. Additionally, the court found that the discrepancies in the complainant’s account and the lack of supporting evidence did not undermine the jury’s ability to convict, as there were some corroborating elements in the evidence.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v FQ [2008] QCA 68
PARTIES:	R v FQ (appellant)
FILE NO/S:	CA No 227 of 2007 DC No 200 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	28 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2008
JUDGES:	McMurdo P, Holmes and Muir JJA Separate reasons for each member of the court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where three written statements from interviews with complainant child were admitted into evidence under s 93A of the Evidence Act – where no record of police questions – whether trial judge correctly exercised discretion under s 98 and s 130 of the Evidence Act in not excluding statements – whether s 93A Evidence Act statements must be of “demonstrable unreliability” to be excluded under s 98 Evidence Act – whether “interests of justice” favour exclusion of the s 93A statements CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – where discrepancies in complainant’s account as to details and times of offences – where some supporting evidence for complainant’s evidence – whether open to jury to convict on all the evidence Gately v The Queen (2007) 241 ALR 1; [2007] HCA 55, considered R v D [2003] QCA 151, considered R v FAR [1996] 2 Qd R 49; CA No 1 of 1995, 4 August 1995, considered R v Morris; ex parte Attorney-General [1996] 2 Qd R 68; CA No 390 of 1994, 15 March 1995, considered Criminal Code Act 1899 (Qld), s 590AA Evidence Act 1977 (Qld), s 93A, s 98, s 130
COUNSEL:	B G Devereaux for the appellant A J Edwards for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent