R v Heal - [2001] QCA 572

SUPREME COURT OF QUEENSLAND

CITATION: R v Heal [2001] QCA 572

PARTIES: R
v
HEAL, Warren Mark
(applicant/appellant)

FILE NO/S: CA No 167 of 2001
DC No 587 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 21 December 2001

DELIVERED AT: Brisbane

HEARING DATE: 4 October 2001

JUDGE:
Thomas JA, Douglas and Mullins JJ

Judgment of the Court

ORDER: 1. Appeal against conviction dismissed;
2. Leave to appeal against sentence refused.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – appellant convicted of rape and sexual assault.

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – EVIDENCE – MATTERS RELATING TO PROOF – ABSENCE OF AVAILABLE EVIDENCE – whether failure to tender appellant’s clothing resulted in a miscarriage of justice – where appellant argued absence of stains on clothing supported his version of events – where appellant also argued an alleged witness ought to have been called – where clothing not called for by defence counsel at trial and where identify of alleged witness also not obtained from police by defence counsel – where strong evidence available to convict appellant – where no miscarriage of justice.

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE -

whether the appellant was disadvantaged by the failure of police to take a statement from an elderly woman.

COUNSEL: The appellant appeared on his own behalf
D Meredith for respondent

SOLICITORS: The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

THE COURT: The appellant was convicted of two counts of rape and one count of indecent assault. The crimes were said to have been committed upon a complainant who was a British backpacker tourist visiting Cairns. She had been drinking on the night of the offences at a nightclub in Cairns, and described herself as being “merry, but not staggering”. There seems no doubt, however, that she was clearly affected by alcohol. The appellant, himself, was interviewed by police and it is also apparent that he was also clearly affected by alcohol.

The complainant left the bar where she had been drinking and believed she had been helped into a taxi by a travelling companion. The vehicle was not a taxi and did not bear any markings which could lead to a conclusion that it was. She made the mistake, she said, because she was used to unlicensed cabs in Britain.

The appellant was the driver of that motor vehicle. The complainant said that she noticed that the appellant drove her past the street where she was staying, and that she pointed this out to him. She said that he replied that they would be back in a minute and that he had to go somewhere to get something. The complainant said she…

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 Heal

Details

AGLC: R v Heal [2001] QCA 572
Case: [2001] QCA 572
Decision Date: 21 December 2001

CaseChat Overview and Summary

The appellant was convicted of rape and sexual assault and appealed against the conviction. The appeal was heard in the High Court of Australia. The appellant argued that the absence of stains on his clothing and the failure to call an alleged witness resulted in a miscarriage of justice. The appellant contended that the absence of stains on his clothing supported his version of events, while the Crown argued that the absence of the evidence did not result in a miscarriage of justice as there was strong evidence available to convict the appellant.

The High Court considered the arguments made by the appellant and the Crown. The Court found that the absence of stains on the appellant's clothing did not result in a miscarriage of justice as there was strong evidence available to convict the appellant. The Court also found that the failure to call an alleged witness did not result in a miscarriage of justice as the appellant did not provide the defence counsel with the identity of the alleged witness and the clothing was not called for by defence counsel at trial. The Court held that the trial judge did not err in his consideration of the evidence and that there was no miscarriage of justice.

The High Court dismissed the appeal against conviction and refused leave to appeal against sentence. The Court held that the appellant's convictions were supported by the evidence and that there was no miscarriage of justice. The Court also held that the sentence imposed by the trial judge was appropriate and that there was no basis for the appellant to appeal against sentence. The appeal was dismissed, and the convictions and sentences imposed by the trial judge were upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed;

2. 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 Heal [2001] QCA 572
PARTIES:	R v HEAL, Warren Mark (applicant/appellant)
FILE NO/S:	CA No 167 of 2001 DC No 587 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	21 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2001
JUDGE:	Thomas JA, Douglas and Mullins JJ Judgment of the Court
ORDER:	1. Appeal against conviction dismissed; 2. Leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – appellant convicted of rape and sexual assault. CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – EVIDENCE – MATTERS RELATING TO PROOF – ABSENCE OF AVAILABLE EVIDENCE – whether failure to tender appellant’s clothing resulted in a miscarriage of justice – where appellant argued absence of stains on clothing supported his version of events – where appellant also argued an alleged witness ought to have been called – where clothing not called for by defence counsel at trial and where identify of alleged witness also not obtained from police by defence counsel – where strong evidence available to convict appellant – where no miscarriage of justice. CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - whether the appellant was disadvantaged by the failure of police to take a statement from an elderly woman.
COUNSEL:	The appellant appeared on his own behalf D Meredith for respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent