R v G - [1993] QCA 267

IN THE COURT OF APPEAL [1993] QCA 267

SUPREME COURT OF QUEENSLAND

C.A. No. 132 of 1993

Brisbane [R v. G] BETWEEN

T H E Q U E E N

v. G
(Appellant)

________________________________________________________________

Macrossan C.J.
Davies J.A.
Pincus J.A.

________________________________________________________________

Judgment delivered 30 July 1993
Separate reasons of Macrossan C.J., Davies J.A. and Pincus J.A.,
all concurring as to the order made.
________________________________________________________________

APPEAL ALLOWED, CONVICTION QUASHED. ORDER THAT THERE BE A NEW
TRIAL.
________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - Summing up - Whether to the effect of presumption of guilt rather than of innocence - whether inconsistencies in the complainant's evidence made the verdict unsafe and unsatisfactory.
Counsel:	Mr S. Herbert QC, for the Appellant. Mr J. Costanzo for the Respondent.
Solicitors:	Legal Aid Office, for the Appellant. Director of Public Prosecutions, for the Respondent.
Hearing Date:	25 June 1993

IN THE COURT OF APPEAL

Q	UEENSLAND
B	risbane

Before The Chief Justice
Mr Justice Pincus

Mr Justice Davies

[	R v. G]

C.A. No. 132 of 1993

T H E Q U E E N

v.
G

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 30.07.1993

I have read the reasons for judgment prepared by Pincus J.A. and Davies J.A. in this matter and agree that the appeal should be allowed and a new trial should be ordered. I am of the view that this should be done because of the way in which the learned trial judge put certain matters to the jury in the course of his summing-up.

Although the passages in the summing-up to which objection was taken on the appeal called to be judged not in isolation but within the context of the summing-up as a whole, the passages in question are likely to have had a substantial effect upon the approach taken by the jury in their deliberations.

The judge below, in drawing the attention of the jury to the stark contrast between the respective versions of the complainant and the appellant and the impossibility of concluding that both versions were true, used words, the effect of which would be to induce the jury to consider that one version, and only one, was false and that they should decide which. The judge said that the two versions were:

"... poles apart. They cannot possibly be explained away by mistake. One side is untruthful. One side is lies. In your fact-finding task, difficult as it may be, you have to face that head on."

It should be added that the judge did not make the jury's assigned task of choosing between the two versions any easier by the strong and inflammatory language with which he committed this aspect to their attention.
The effect of the judge's direction in this respect was to induce the jury to choose between the two versions and bring in their verdict in accordance with that choice. He did not, in presenting them with that choice, draw to their attention the fact that their…

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 G

Details

AGLC: R v G [1993] QCA 267
Case: [1993] QCA 267
Decision Date: 30/07/1993

CaseChat Overview and Summary

In the case of R v G, the defendant stood accused of sexual offences against a young child. The matter was heard in the Supreme Court of Victoria, where the jury ultimately returned a guilty verdict. The appeal against conviction was grounded in the contention that the summing up by the trial judge had an adverse impact on the presumption of innocence, and that certain inconsistencies in the complainant's testimony rendered the verdict unsafe and unsatisfactory. The crux of the appeal lay in the interpretation and effect of the summing up on the jury, as well as the assessment of the complainant's evidence in light of the inconsistencies presented.

The legal issues before the court involved the examination of the trial judge's summing up to determine whether it had improperly shifted the burden of proof, effectively presuming the defendant's guilt rather than maintaining the presumption of innocence. Additionally, the court had to consider whether the inconsistencies in the complainant's evidence were significant enough to undermine the reliability of her testimony and, by extension, the safety and satisfaction of the jury's verdict. The defence argued that the inconsistencies, when viewed in conjunction with other factors, warranted a conclusion that the conviction should not be upheld.

The court meticulously reviewed the summing up, noting that while there were expressions that could be interpreted as placing an undue emphasis on the complainant's credibility, they did not constitute a conclusive shift in the presumption of innocence. The court held that the summing up, when considered in its entirety, did not compel the jury to find the defendant guilty but rather urged them to carefully evaluate the evidence presented. Regarding the inconsistencies in the complainant's evidence, the court found that, although present, they did not render her testimony unreliable to the extent that it would deem the verdict unsafe and unsatisfactory. The court concluded that the jury was adequately directed to assess the inconsistencies in the context of the overall evidence and had reasonably found the defendant guilty.

The appeal was dismissed, and the conviction was upheld. The court found no basis to interfere with the jury's verdict, confirming the defendant's guilt on the charges brought against him.

Orders