R v Goulding - [1994] QCA 276

IN THE COURT OF APPEAL [1994] QCA 276

SUPREME COURT OF QUEENSLAND

C.A. 154 of 1994

Brisbane

[R. v. Goulding]

T H E Q U E E N
v.
ROY KEVIN GOULDING

(Appellant)

McPherson JA

Pincus JA

Williams J

Judgment delivered 03/08/1994

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:CRIMINAL - indecent dealing with boy under 14 years - offence 1982 trial 1994 - trial judge did not err in refusing to stay indictment - Jago v. District Court (N.S.W.) (1989) 168 C.L.R. 23 at 33-4 applied - fresh evidence - results of inquiries made at outset of trial forwarded to solicitor but not brought to his personal attention - consideration whether evidence fresh and cogent - held not meet Mickelberg test (1989) 167 C.L.R. 259 at 273.

SENTENCE - 2 years imprisonment recommendation parole after 6

months - not excessive.

Counsel:Herbert QC for the appellant

Byrne QC for the respondent

Solicitors:Legal Aid Office for the appellant
Director of Prosecutions for the respondent
Hearing date:27 July 1994
Judgment delivered 03/08/1994

After a trial in the District Court, the appellant was convicted of indecently dealing with a boy under the age of 14 years, and sentenced to imprisonment for a period of two years, with a recommendation that he be eligible for parole after serving six months. He has appealed against his conviction on two grounds:

Firstly, that the learned trial Judge erred in the exercise of his discretion in ruling that the indictment should not be stayed; and
Secondly, that fresh evidence, not available at the time of trial, would have substantially affected the weight of the complainant's evidence to such an extent that the jury would have entertained a reasonable doubt as to the guilt of the accused.
He also seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

The indictment alleged that the offence occurred "on a date unknown between 31 December 1981 and 1 January 1983 at Toowoomba". The trial took place on 21 March 1994. In other words, the offence was approximately twelve years old at the time of trial. An application was made to the learned trial Judge for an order, in the exercise of his inherent jurisdiction, staying the trial as an abuse of process. In support of that, it was submitted that the recollections of witnesses would be "imperfect", and that the appellant was deprived of the opportunity of raising a defence such as alibi because the complainant could not be pinned down to any date in the twelve month period alleged in the indictment. The learned trial Judge described those submissions as "fair comment" but refused the stay. In the course of doing so he pointed out that the recollection of witnesses could be properly tested before the jury by cross-examination.

The complaint leading to the prosecution was first made to the police on 25 June 1993, and thereafter the matter seems to have proceeded with due…

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 Goulding

Details

AGLC: R v Goulding [1994] QCA 276
Case: [1994] QCA 276
Decision Date: 3/08/1994

CaseChat Overview and Summary

The appellant, Roy Kevin Goulding, was convicted of indecently dealing with a boy under the age of 14 years, an offence that occurred between 31 December 1981 and 1 January 1983 in Toowoomba. Goulding was sentenced to imprisonment for two years, with a recommendation for parole eligibility after six months. He appealed against both his conviction and the sentence. The appeal against conviction was based on two grounds: firstly, that the trial judge erred in refusing to stay the indictment; and secondly, that fresh evidence would have substantially affected the complainant's evidence. Goulding also sought leave to appeal against the sentence on the ground that it was manifestly excessive.

The court considered the first ground of appeal, which related to the trial judge's refusal to stay the indictment. The court noted that the trial judge had taken into account relevant considerations and did not commit any error warranting interference. The court found that the trial judge's discretion was exercised properly and that the trial was fair.

The second ground of appeal related to the fresh evidence that became available during the trial but was not brought to the attention of the appellant's legal representative. The court found that the evidence did not meet the criteria for being considered "fresh" as it was available to the legal representative prior to the conclusion of the trial. Furthermore, the evidence did not have a significant impact on the complainant's credibility or the likelihood of the jury being influenced by it, thus it did not warrant setting aside the conviction and granting a new trial.

Regarding the sentence, the court found that the sentence of two years imprisonment with a recommendation for parole eligibility after six months, although not light, was not manifestly excessive considering the nature of the offence and the circumstances. Therefore, the application for leave to appeal against the sentence was refused.

In conclusion, the appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused. The sentence remains as imposed by the trial judge.

Orders