R v G; ex parte - [2003] QCA 470

SUPREME COURT OF QUEENSLAND

CITATION:

R v G; ex parte A-G (Qld) [2003] QCA 470

PARTIES:

R
v
G
(appellant/respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 76 of 2003
CA No 91 of 2003
DC No 383 of 2002
DC No 258 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

31 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2003

JUDGES:

Davies and Williams JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 76 of 2003

Appeal against conviction dismissed         (i)

Application for leave to appeal against sentence refused       (ii)

In CA No 91 of 2003

Appeal allowed          (i)

Add to the sentence of nine years imprisonment for count 3, sexual assault with a circumstance of aggravation, a declaration that the conviction was for a serious violent offence        (ii)

Otherwise all sentences to stand       (iii)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – PRESENTATION OF DEFENCE CASE – where appellant convicted of a number of sexual and assault offences – where complainant was his de-facto partner – where appellant and complainant gave different accounts of circumstances of offences – where credibility was critical issue at trial – where appellant’s evidence described by learned trial judge as “highly imaginary” in summing-up – whether summing-up was not balanced

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant said that he believed at the time of offences that complainant had been injecting their son with drugs – where learned trial judge excluded video evidence from child – whether appellant was prejudiced by the exclusion of the video

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant sentenced to nine years imprisonment – where learned sentencing judge took personal circumstances of appellant into account when considering whether to make a serious violent offence declaration – whether serious violent offence declaration should have been made

Penalties and Sentences Act 1992 (Qld), Pt 9A

R v Eastwell [1992] QCA 109; CA No 31 of 1992, 29 April 1992, cited
R v Pettigrew [2001] QCA 468; CA No 145 of 2001, 30 October 2001, cited
R v Sambo [2000] QCA 191; CA No 422 of 1999, 24 May 2000, cited
R v Struthers [1997] QCA 287; CA No 186 of 1997, 25 July 1997, distinguished

COUNSEL:

M J Byrne QC for the appellant in CA No 76 of 2003 and the respondent…

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; ex parte

Details

AGLC: R v G; ex parte [2003] QCA 470
Case: [2003] QCA 470
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case before the court involved an appeal against the conviction and sentence of the appellant, who was convicted of several sexual and assault offences against his de-facto partner. The appeal and subsequent application for leave to appeal against the sentence were heard in the Court of Appeal. The core of the dispute centred on the fairness of the trial, the admissibility of certain evidence, and the appropriateness of the sentence.

The legal issues before the court were whether the summing-up by the trial judge was balanced and whether the exclusion of certain video evidence prejudiced the appellant's defence. Additionally, the court examined whether the sentence was appropriate, particularly whether a serious violent offence declaration should have been made considering the personal circumstances of the appellant.

In addressing the first issue, the court found that the trial judge's summing-up, which described the appellant's evidence as "highly imaginary," was not unfair as it allowed the jury to assess the credibility of the parties' accounts. Regarding the exclusion of the video evidence, the court determined that the appellant was not prejudiced by this exclusion as the video did not contain new or critical information that would have likely altered the jury's decision. However, concerning the sentence, the court concluded that a serious violent offence declaration should have been made for one of the counts, taking into account the nature of the offence and the personal circumstances of the appellant.

The court dismissed the appeal against the conviction but allowed the appeal against the sentence for count 3, adding a declaration that the conviction was for a serious violent offence. The remaining sentences were to stand as originally imposed. The application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

In CA No 76 of 2003

Appeal against conviction dismissed (i)

Application for leave to appeal against sentence refused (ii)

In CA No 91 of 2003

Appeal allowed (i)

Add to the sentence of nine years imprisonment for count 3, sexual assault with a circumstance of aggravation, a declaration that the conviction was for a serious violent offence (ii)

Otherwise all sentences to stand (iii)

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

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CITATION:	R v G; ex parte A-G (Qld) [2003] QCA 470
PARTIES:	R v G (appellant/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 76 of 2003 CA No 91 of 2003 DC No 383 of 2002 DC No 258 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	31 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2003
JUDGES:	Davies and Williams JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 76 of 2003 Appeal against conviction dismissed (i) Application for leave to appeal against sentence refused (ii) In CA No 91 of 2003 Appeal allowed (i) Add to the sentence of nine years imprisonment for count 3, sexual assault with a circumstance of aggravation, a declaration that the conviction was for a serious violent offence (ii) Otherwise all sentences to stand (iii)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – PRESENTATION OF DEFENCE CASE – where appellant convicted of a number of sexual and assault offences – where complainant was his de-facto partner – where appellant and complainant gave different accounts of circumstances of offences – where credibility was critical issue at trial – where appellant’s evidence described by learned trial judge as “highly imaginary” in summing-up – whether summing-up was not balanced CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant said that he believed at the time of offences that complainant had been injecting their son with drugs – where learned trial judge excluded video evidence from child – whether appellant was prejudiced by the exclusion of the video CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant sentenced to nine years imprisonment – where learned sentencing judge took personal circumstances of appellant into account when considering whether to make a serious violent offence declaration – whether serious violent offence declaration should have been made Penalties and Sentences Act 1992 (Qld), Pt 9A R v Eastwell [1992] QCA 109; CA No 31 of 1992, 29 April 1992, cited R v Pettigrew [2001] QCA 468; CA No 145 of 2001, 30 October 2001, cited R v Sambo [2000] QCA 191; CA No 422 of 1999, 24 May 2000, cited R v Struthers [1997] QCA 287; CA No 186 of 1997, 25 July 1997, distinguished
COUNSEL:	M J Byrne QC for the appellant in CA No 76 of 2003 and the respondent…