R v HAB

Case [2006] QCA 80 21 March 2006

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAB [2006] QCA 80

PARTIES:

R
v
HAB
(appellant)

FILE NO/S:

CA No 259 of 2005
DC No 908 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 9 March 2006
Reasons delivered 21 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2006

JUDGES:

Williams and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted on four counts of indecent treatment of a child D and another count of indecent treatment of a different child J – where the jury could not reach a verdict on the charge concerning J but convicted the appellant on each of the counts concerning D – whether the trial judge failed to direct the jury in terms of s 21AW(2) of the Evidence Act 1977 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the trial judge committed an error of law in not giving directions as required by the Evidence Act 1977 (Qld) s 21AW(2) – whether proviso of “no substantial miscarriage of justice occurred” operated

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – whether the trial judge failed to adequately direct the jury that the evidence by one complainant was inadmissible in proof of the charge or charges relating to the other complainant

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where jury was not given instruction on the use that could or could not be made of one complainant’s evidence in the case involving the other complainant – whether the trial judge committed an error of law in failing to warn the jury against the dangers of propensity reasoning

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the jury asked a question of the trial judge as to whether evidence or statements made by the complainants to police held equal weight with their testimony under oath –…

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 HAB

Details

AGLC: R v HAB [2006] QCA 80
Case: [2006] QCA 80
Decision Date: 21 March 2006

CaseChat Overview and Summary

In the case of R v HAB, the appellant was convicted on four counts of indecent treatment of a child D and another count of indecent treatment of a different child J. The jury was unable to reach a verdict on the charge concerning J but convicted the appellant on each of the counts concerning D. The appellant appealed against his conviction, arguing that the trial judge failed to direct the jury in accordance with s 21AW(2) of the Evidence Act 1977 (Qld). The appeal was allowed.

The legal issues before the court included whether the trial judge erred in not giving the jury the necessary directions required by s 21AW(2) of the Evidence Act 1977 (Qld) and whether this constituted a substantial miscarriage of justice. The court also considered whether the trial judge adequately informed the jury that the evidence by one complainant was inadmissible in proof of the charges relating to the other complainant. Additionally, the court examined whether the trial judge failed to warn the jury against the dangers of propensity reasoning, and if the judge adequately directed the jury on the weight to be given to the complainants' statements to police.

The court found that the trial judge did indeed err in not providing the necessary directions to the jury as required by s 21AW(2) of the Evidence Act 1977 (Qld). The failure to warn the jury against the dangers of propensity reasoning and the inadequate direction regarding the weight to be given to the complainants' statements to police further contributed to the substantial miscarriage of justice. Consequently, the court allowed the appeal and quashed the convictions. The matter was remitted for a retrial before a differently constituted jury.

No further orders were made beyond the allowance of the appeal and the quashing of the convictions. The case was to be remitted for a retrial.

Orders