R v HAU

Case [2009] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAU [2009] QCA 165

PARTIES:

R
v
HAU
(appellant/applicant)

FILE NO/S:

CA No 66 of 2009
DC No 156 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

16 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2009

JUDGES:

Keane JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against convictions allowed

2.   Convictions on all counts set aside

3.   Retrial ordered on all counts

Ex tempore orders of Muir JA:

4.   The applicant file and serve written submissions in support of their application for an indemnity certificate pursuant to s15(1) Appeal Costs Fund Act 1973 (Qld) on or before 4pm 17 June 2009 and that the respondent file and serve written submissions on or before 4 pm 18 June 2009

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESSES AND PRESENTING EVIDENCE – NOTICE AND DISCLOSURE TO ACCUSED – where appellant convicted of indecent treatment and unlawful carnal knowledge of a child under 16 years of age and was the guardian of that child – where the prosecution failed to disclose the victim impact statement and attached doctor's letter – where the victim impact statement presented different account of events by complainant – where defence should have been afforded the opportunity to cross-examine the complainant with respect to those different accounts – whether defence suffered forensic disadvantage by
non-disclosure

Criminal Code 1899 (Qld), s 590AB, s 668E
Evidence Act 1997 (Qld), s 93A

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85, cited
Easterday v The Queen (2003) 143 A Crim R 154; [2003] WASCA 69, cited
R v Beesley[2008] QCA 240, cited
R v Bryer (1994) 75 A Crim R 456, cited
R v C [2000] 2 Qd R 54; [1999] QCA 246, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, cited
R v T; ex parte Attorney-General of Queensland [2002] QCA 132, cited
R v Waerea; ex parte A-G (Qld) [2003] QCA 20, cited

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

J A Greggery for the appellant/applicant
M Cowen for the respondent

SOLICITORS:

Macrossan & Amiet for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. KEANE JA:  On 19 March 2009 the appellant was convicted upon the verdict of a jury of one count of indecent treatment of a child under 16 years of age, and six counts of having unlawful carnal knowledge with a girl under the age of 16 years.  Each count on the indictment alleged as a circumstance of aggravation that the appellant was the guardian of the complainant. 

  1. On 20 March 2009…

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Details
AGLC
R v HAU [2009] QCA 165
Case
[2009] QCA 165
Decision Date

CaseChat Overview and Summary

The appellant was convicted of indecent treatment and unlawful carnal knowledge of a child under 16 years of age. The child was the appellant's ward, and the prosecution was required to disclose evidence, including a victim impact statement and an accompanying doctor's letter, which provided a different account of events compared to the complainant's testimony. The appellant's legal team argued that they were not given the opportunity to cross-examine the complainant regarding these differing accounts, which caused a forensic disadvantage. The case was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether the failure to disclose the victim impact statement and the doctor's letter resulted in a miscarriage of justice. The appellant's counsel contended that the non-disclosure of this material was a breach of the prosecution's duty to disclose all relevant evidence, which deprived the defence of the opportunity to adequately cross-examine the complainant and challenge the prosecution's case. The court needed to determine if this breach was substantial enough to warrant a retrial.

The court found that the prosecution's failure to disclose the victim impact statement and the doctor's letter constituted a significant procedural error. This non-disclosure prevented the defence from effectively cross-examining the complainant about the discrepancies in the accounts, leading to a substantial miscarriage of justice. The court held that the appellant's right to a fair trial was compromised by this oversight. Consequently, the convictions were quashed, and a retrial was ordered on all counts.

The court issued ex tempore orders for the appellant to file and serve written submissions regarding an application for an indemnity certificate on or before 4pm 17 June 2009, with the respondent required to file and serve their submissions by 4pm 18 June 2009. The appeal against the convictions was allowed, the convictions on all counts were set aside, and a retrial was ordered on all counts.

Orders

Orders of the court

1. Appeal against convictions allowed

2. Convictions on all counts set aside

3. Retrial ordered on all counts

Ex tempore orders of Muir JA:

4. The applicant file and serve written submissions in support of their application for an indemnity certificate pursuant to s15(1) Appeal Costs Fund Act 1973 (Qld) on or before 4pm 17 June 2009 and that the respondent file and serve written submissions on or before 4 pm 18 June 2009

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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