R v Gregory - [2011] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gregory [2011] QCA 86

PARTIES:

R
v
GREGORY, Michael John
(appellant)

FILE NO/S:

CA No 176 of 2010
CA No 195 of 2010
DC No 261 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2011

JUDGES:

Muir and White JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant convicted of one count of wilfully exposing a child under 16 to an indecent film, one count of indecent treatment of a child under 16 and one count of rape – where similar fact evidence of the appellant’s sexual offending against an 11 year old boy in 1993 was ruled admissible in a pre-trial hearing – where appellant submitted that a broad similarity between the 1993 offences and the present allegations was an insufficient basis for admitting the evidence – whether the similar fact evidence should have been excluded

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – APPEAL DISMISSED – where similar fact evidence was ruled admissible in a pre-trial hearing – where appellant submitted that the trial judge’s summing up in respect of such evidence was unbalanced – where appellant submitted that the trial judge failed to draw the jury’s attention to the 10 year gap between the 1993 offences and the present allegations – where appellant submitted that the trial judge failed to fully inform the jury of the use to which the similar fact evidence could be put – whether trial judge should have warned the jury as to the dangers of convicting on such evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where complainant was reluctant to make an initial complaint to police – where appellant submitted that the complainant’s evidence and evidence given by the complainant’s 19 year old female friend were unreliable – where appellant submitted that the admission of similar fact evidence unreasonably informed the jury’s considerations in respect of the charge for wilful exposure of a child under 16 to an indecent film – where appellant did not give evidence at trial – whether verdict unsafe or unsatisfactory having regard to evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to four years imprisonment for wilfully exposing a child under 16 to an indecent film, to be served concurrently with other sentences of four and…

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 Gregory

Details

AGLC: R v Gregory [2011] QCA 86
Case: [2011] QCA 86
Decision Date: 6 May 2011

CaseChat Overview and Summary

The appeal was brought by the appellant, who was convicted of one count of wilfully exposing a child under 16 to an indecent film, one count of indecent treatment of a child under 16, and one count of rape. The case was heard by the Court of Appeal. The appellant contested the admission of similar fact evidence pertaining to his sexual offences against an 11-year-old boy in 1993, which was ruled admissible in a pre-trial hearing. The appellant also argued that the trial judge misdirected the jury regarding the use of this evidence, failed to warn them about the risks of convicting based on such evidence, and that the verdict was unreasonable and unsatisfactory given the evidence. Finally, the appellant challenged the sentence, arguing it was manifestly excessive.

The court had to determine whether the similar fact evidence should have been admitted, whether the trial judge properly instructed the jury on its use, and if the verdict was unreasonable given the evidence. The court found that the trial judge did not err in admitting the evidence as it was relevant to the appellant's propensity to commit the current offences. The court also concluded that the trial judge's summing up was balanced and appropriately directed the jury on the use of similar fact evidence, including the risks involved. The court found that the evidence of the complainant and her friend was reliable, and that the jury's consideration of the similar fact evidence did not make the verdict unreasonable. Lastly, the court found that the sentence was not manifestly excessive.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The court upheld the conviction and sentence, finding no grounds for interference.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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 Gregory [2011] QCA 86
PARTIES:	R v GREGORY, Michael John (appellant)
FILE NO/S:	CA No 176 of 2010 CA No 195 of 2010 DC No 261 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2011
JUDGES:	Muir and White JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant convicted of one count of wilfully exposing a child under 16 to an indecent film, one count of indecent treatment of a child under 16 and one count of rape – where similar fact evidence of the appellant’s sexual offending against an 11 year old boy in 1993 was ruled admissible in a pre-trial hearing – where appellant submitted that a broad similarity between the 1993 offences and the present allegations was an insufficient basis for admitting the evidence – whether the similar fact evidence should have been excluded CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – APPEAL DISMISSED – where similar fact evidence was ruled admissible in a pre-trial hearing – where appellant submitted that the trial judge’s summing up in respect of such evidence was unbalanced – where appellant submitted that the trial judge failed to draw the jury’s attention to the 10 year gap between the 1993 offences and the present allegations – where appellant submitted that the trial judge failed to fully inform the jury of the use to which the similar fact evidence could be put – whether trial judge should have warned the jury as to the dangers of convicting on such evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where complainant was reluctant to make an initial complaint to police – where appellant submitted that the complainant’s evidence and evidence given by the complainant’s 19 year old female friend were unreliable – where appellant submitted that the admission of similar fact evidence unreasonably informed the jury’s considerations in respect of the charge for wilful exposure of a child under 16 to an indecent film – where appellant did not give evidence at trial – whether verdict unsafe or unsatisfactory having regard to evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to four years imprisonment for wilfully exposing a child under 16 to an indecent film, to be served concurrently with other sentences of four and…