R v GAL - [2011] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAL [2011] QCA 185

PARTIES:

R
v
GAL
(appellant)

FILE NO/S:

CA No 194 of 2010
DC No 154 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

5 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2011

JUDGES:

Margaret McMurdo P, Fraser JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted by jury of two counts of rape and one count of indecent dealing with a child under 16 and the child was under 12 – where there was significant delay in the complainant reporting the conduct – where the complainant had difficulty giving evidence – whether the warning given by the trial judge in relation to the complainant’s credibility was sufficient – whether a warning in accordance with Robinson v The Queen was required

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the complainant’s victim impact statement was disclosed to the defence solicitors but defence counsel did not receive it before the trial – where defence counsel did not cross-examine on psychologist’s report – whether miscarriage of justice as a result of defence counsel not having, or not considering, all relevant information before the trial

KLM v The State of Western Australia (2009) 194 A Crim R 503; [2009] WASCA 73, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
R v HAU [2009] QCA 165, considered
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, considered
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, applied

COUNSEL:

C Heaton SC, with K Hillard, for the appellant
D Meredith for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Dalton J's reasons for dismissing this appeal.

FRASER JA: I agree with the reasons for judgment of Dalton J and the order proposed by her Honour.

DALTON J: The appellant appeals against his conviction by a jury on two counts of rape (one with his penis and one with his fingers) and one count of unlawful and indecent dealing with a child under 16, when that child was under 12. There are two grounds of appeal. The first is that the trial judge did not sufficiently warn the jury in accordance with Robinson v The Queen.[1]The second ground of appeal is that there was a miscarriage of justice at the trial because defence counsel did not…

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 GAL

Details

AGLC: R v GAL [2011] QCA 185
Case: [2011] QCA 185
Decision Date: 5 August 2011

CaseChat Overview and Summary

The appellant, referred to as GAL, was convicted by a jury of two counts of rape and one count of indecent dealing with a child under 16, with the child being under the age of 12. The case was heard in the Court of Appeal. The significant delay in the complainant reporting the alleged conduct, along with the complainant's difficulty in giving evidence, formed the basis of the appeal. The central legal issues that the court had to decide were whether the trial judge's warning about the complainant’s credibility was sufficient and if a warning in line with the decision in Robinson v The Queen was necessary. Additionally, the court examined whether the failure of defence counsel to cross-examine on a psychologist's report and the late disclosure of the complainant's victim impact statement to the defence solicitors constituted a miscarriage of justice.

The court meticulously reviewed the evidence and the trial judge's directions to the jury. It found that the trial judge did adequately warn the jury about the potential difficulties in the complainant’s testimony, thus meeting the standards set by the High Court in Robinson v The Queen. The court also held that the late disclosure of the victim impact statement and the failure to cross-examine on the psychologist’s report did not result in a miscarriage of justice. The court concluded that the evidence was overwhelming and that the defence had ample opportunity to challenge the complainant's credibility and the weight of her evidence. Therefore, the appeal was dismissed.

The court dismissed the appeal and affirmed the conviction, finding no basis for a new trial or an order to set aside the convictions. The reasoning was grounded in the sufficiency of the trial judge's warnings, the overwhelming nature of the evidence against the appellant, and the absence of any prejudice caused by the late disclosure of the victim impact statement and the failure to cross-examine on the psychologist's report.

Orders

Orders of the court

Appeal dismissed

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 GAL [2011] QCA 185
PARTIES:	R v GAL (appellant)
FILE NO/S:	CA No 194 of 2010 DC No 154 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	5 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2011
JUDGES:	Margaret McMurdo P, Fraser JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted by jury of two counts of rape and one count of indecent dealing with a child under 16 and the child was under 12 – where there was significant delay in the complainant reporting the conduct – where the complainant had difficulty giving evidence – whether the warning given by the trial judge in relation to the complainant’s credibility was sufficient – whether a warning in accordance with Robinson v The Queen was required CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the complainant’s victim impact statement was disclosed to the defence solicitors but defence counsel did not receive it before the trial – where defence counsel did not cross-examine on psychologist’s report – whether miscarriage of justice as a result of defence counsel not having, or not considering, all relevant information before the trial KLM v The State of Western Australia (2009) 194 A Crim R 503; [2009] WASCA 73, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v HAU [2009] QCA 165, considered R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, considered R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, applied
COUNSEL:	C Heaton SC, with K Hillard, for the appellant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent