R v H - [2003] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

R v H [2003] QCA 147

PARTIES:

R
v
H
(appellant)

FILE NO/S:

CA No 428 of 2002
DC No 3400 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2003

JUDGES:

McPherson and Williams JJA and Atkinson 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted of two counts of rape – where background evidence of prior sexual acts by the appellant on the complainant was admitted at trial – where this evidence was not available to either party before the trial – whether there was a miscarriage of justice because the disclosure of highly prejudicial evidence was not made prior to trial

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 – GENERALLY – where blood from two females and sperm found on pyjama pants worn by complainant at time of offence – where trial judge directed jury that they may find the blood sample to be of little importance – where appellant sought redirection suggesting some other person may have worn the pants after they were last washed – whether trial judge was justified in not giving such a redirection

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – where prosecution asked complainant’s mother whether she had offered complainant to the appellant for money – where prosecution stated in closing address to jury that it was the defence who had brought up that issue – where a redirection on the matter was given – whether there was a mistrial due to the way the matter was introduced and the use made of it by the prosecution during closing address

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant sentenced to eight years imprisonment – where appellant had both physical and psychological dominance over complainant – where particular vulnerability of complainant due to reliance on appellant for a visa to remain in the country – whether sentence manifestly excessive

R v Fogarty [1996] QCA 490; CA No 418 of 1996, 6 December 1996, cited
R v P [2001] QCA 25; CA No 298 of 2000, 9 February 2001, cited
R v Williams

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 H

Details

AGLC: R v H [2003] QCA 147
Case: [2003] QCA 147
Decision Date: 4 April 2003

CaseChat Overview and Summary

The appellant was convicted of two counts of rape and appealed against the conviction and sentence. The background evidence of prior sexual acts by the appellant on the complainant was admitted at trial despite not being available to either party prior to the trial. The appellant argued that this was a miscarriage of justice as the disclosure was not made in advance. Additionally, the trial judge directed the jury that the blood sample found on the complainant’s pyjama pants could be of little importance. The appellant sought a redirection to suggest that someone else might have worn the pants after the last wash, but this was not provided. Lastly, the prosecution asked the complainant’s mother whether she had offered the complainant to the appellant for money, which the prosecution later stated in their closing address was brought up by the defence, leading to a redirection. The appellant argued that this amounted to a mistrial.

The court found that the admission of the background evidence did not amount to a miscarriage of justice as the evidence was not of a nature that it would have substantially affected the outcome of the trial. The court also found that the trial judge was justified in not giving the redirection regarding the pyjama pants as it was speculative and not supported by the evidence. Regarding the issue of the complainant's mother, the court found that the prosecution's comments did not result in a mistrial as the redirection had adequately clarified the matter. The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence.

The orders of the court were that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused. The appellant's conviction and sentence stood as determined by the trial court.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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

Full text does not contain this section.

CITATION:	R v H [2003] QCA 147
PARTIES:	R v H (appellant)
FILE NO/S:	CA No 428 of 2002 DC No 3400 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2003
JUDGES:	McPherson and Williams JJA and Atkinson 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant convicted of two counts of rape – where background evidence of prior sexual acts by the appellant on the complainant was admitted at trial – where this evidence was not available to either party before the trial – whether there was a miscarriage of justice because the disclosure of highly prejudicial evidence was not made prior to trial 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 – GENERALLY – where blood from two females and sperm found on pyjama pants worn by complainant at time of offence – where trial judge directed jury that they may find the blood sample to be of little importance – where appellant sought redirection suggesting some other person may have worn the pants after they were last washed – whether trial judge was justified in not giving such a redirection CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – where prosecution asked complainant’s mother whether she had offered complainant to the appellant for money – where prosecution stated in closing address to jury that it was the defence who had brought up that issue – where a redirection on the matter was given – whether there was a mistrial due to the way the matter was introduced and the use made of it by the prosecution during closing address CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant sentenced to eight years imprisonment – where appellant had both physical and psychological dominance over complainant – where particular vulnerability of complainant due to reliance on appellant for a visa to remain in the country – whether sentence manifestly excessive R v Fogarty [1996] QCA 490; CA No 418 of 1996, 6 December 1996, cited R v P [2001] QCA 25; CA No 298 of 2000, 9 February 2001, cited R v Williams