R v GR - [2005] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v GR [2005] QCA 146

PARTIES:

R
v
GR
(appellant)

FILE NO/S:

CA No 319 of 2004
CA No 397 of 2004
DC No 2103 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

10 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2005

JUDGES:

McMurdo P, Jerrard JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal allowed
2.    Conviction set aside
3.    New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES –   where appellant convicted after four day trial of 15 sexual offences against his biological child – where shortly before the complainant's 18^th birthday the complainant gave a 12 page typewritten statement of evidence to police which alleged the appellant committed all the offences in the indictment – where at a pre-trial hearing conducted when the complainant was almost 19 years old the complainant was determined to be a special witness under s 21A Evidence Act 1977 (Qld) – where at pre-trial hearing the complainant's typewritten statement to police was found to be admissible at trial under s 93A Evidence Act 1977 (Qld) – where complainant's evidence in chief and cross-examination at trial was pre-recorded – where trial began after the complainant had turned 19 – whether primary judge erred in determining the complainant's typewritten statement was admissible at trial under s 93A Evidence Act 1977 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where primary judge erred in admitting typewritten statement of complainant into evidence under s 93A Evidence Act 1977 (Qld) – where prosecution case turned largely on complainant's evidence – whether substantial miscarriage of justice would result if appeal not allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where minor inconsistencies in complainant's evidence raised by medical evidence called by appellant – whether convictions unsafe and unsatisfactory – whether retrial should be ordered

Evidence Act 1977 (Qld), s 21A, s 93A
Criminal Code 1899 (Qld), s 668E(1A)

COUNSEL:

T A Ryan for the appellant
C W Heaton for the respondent

SOLICITORS:

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

McMURDO P: The appellant was convicted after a four day trial of five counts of indecent treatment of a child under 16 years who is a lineal descendant, one count of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation, three counts of rape, two counts…

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 GR

Details

AGLC: R v GR [2005] QCA 146
Case: [2005] QCA 146
Decision Date: 10 May 2005

CaseChat Overview and Summary

The appellant in this case was convicted after a four-day trial of fifteen sexual offences against his biological child. The primary evidence against the appellant was a twelve-page typewritten statement made by the complainant to the police shortly before her eighteenth birthday, which alleged that the appellant committed all the offences in the indictment. The trial was held when the complainant had turned 19 years old, and her evidence in chief and cross-examination were pre-recorded. The complainant was deemed a special witness under section 21A of the Evidence Act 1977 (Qld). The appellant appealed against his conviction, arguing that the primary judge erred in admitting the complainant's typewritten statement into evidence under section 93A of the Evidence Act 1977 (Qld).

The court had to determine whether the primary judge erred in admitting the complainant's typewritten statement as evidence under section 93A of the Evidence Act 1977 (Qld). The prosecution's case largely relied on the complainant's evidence. The court also had to consider whether a substantial miscarriage of justice would result if the appeal was not allowed. Additionally, the court had to examine whether the convictions were unsafe and unsatisfactory due to minor inconsistencies in the complainant's evidence, which were raised by medical evidence called by the appellant, and whether a retrial should be ordered.

The court found that the primary judge erred in admitting the complainant's typewritten statement into evidence under section 93A of the Evidence Act 1977 (Qld). The court held that the error was not trivial and resulted in a substantial miscarriage of justice. The court also found that the minor inconsistencies in the complainant's evidence raised by the medical evidence called by the appellant were significant enough to make the convictions unsafe and unsatisfactory. Therefore, the court allowed the appeal, set aside the convictions, and ordered a new trial.

Orders

Orders of the court

1. Appeal allowed

2. Conviction set aside

3. New trial ordered

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v GR [2005] QCA 146
PARTIES:	R v GR (appellant)
FILE NO/S:	CA No 319 of 2004 CA No 397 of 2004 DC No 2103 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	10 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2005
JUDGES:	McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Conviction set aside 3. New trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – where appellant convicted after four day trial of 15 sexual offences against his biological child – where shortly before the complainant's 18^th birthday the complainant gave a 12 page typewritten statement of evidence to police which alleged the appellant committed all the offences in the indictment – where at a pre-trial hearing conducted when the complainant was almost 19 years old the complainant was determined to be a special witness under s 21A Evidence Act 1977 (Qld) – where at pre-trial hearing the complainant's typewritten statement to police was found to be admissible at trial under s 93A Evidence Act 1977 (Qld) – where complainant's evidence in chief and cross-examination at trial was pre-recorded – where trial began after the complainant had turned 19 – whether primary judge erred in determining the complainant's typewritten statement was admissible at trial under s 93A Evidence Act 1977 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where primary judge erred in admitting typewritten statement of complainant into evidence under s 93A Evidence Act 1977 (Qld) – where prosecution case turned largely on complainant's evidence – whether substantial miscarriage of justice would result if appeal not allowed CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where minor inconsistencies in complainant's evidence raised by medical evidence called by appellant – whether convictions unsafe and unsatisfactory – whether retrial should be ordered Evidence Act 1977 (Qld), s 21A, s 93A Criminal Code 1899 (Qld), s 668E(1A)
COUNSEL:	T A Ryan for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent