R v Hellwig - [2006] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hellwig [2006] QCA 179

PARTIES:

R
v
HELLWIG, Steven Walter
(appellant)

FILE NO/S:

CA No 318 of 2005
DC No 572 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2006

JUDGES:

McPherson JA and Chesterman and Mullins JJ
Joint reasons of Chesterman and Mullins JJ, separate reasons of McPherson JA concurring as to the orders made

ORDER:

1. Appeal granted
2. Set aside conviction and order retrial

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where appellant convicted of indecent treatment of a child under the age of 16 – where appellant sentenced to four months imprisonment wholly suspended for an operational period of 12 months – where evidence was pre-recorded under Pt 2 Div 4A Subdiv 3 of the Evidence Act 1977 (Qld) and played at trial – whether trial judge adequately directed jury under s 21AW(2) of the Evidence Act 1977 (Qld)

Evidence Act 1977 (Qld), s 21AW(2), s 93A

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed
R v DM [2006] QCA 79; CA No 260 of 2005 (21 March 2006), considered

R v HAB [2006] QCA 80; CA No 259 of 2005 (21 March 2006), considered
Tasker v Fullwood [1978] 1 NSWLR 20, followed

COUNSEL:

A J Rafter SC for the appellant
C W Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Chesterman and Mullins JJ and with the orders they propose.

CHESTERMAN and MULLINS JJ: On 18 November 2005 the appellant was convicted after a two day trial in the District Court at Ipswich of one count of the indecent treatment of a child under the age of 16 who, at the time, was under his care. He was sentenced to four months imprisonment wholly suspended for an operational period of 12 months.

The complainant was 12 years old at the time of the offence which occurred between 1 July and 2 August 2004. The appellant was 44 years old and was the father of one of the complainant’s friends.

The offence occurred on the occasion of the appellant’s son’s twelfth birthday party. A number of children, including the complainant, attended the function. The appellant celebrated the occasion with some alcoholic sustenance. As the children were leaving the appellant embraced the complainant and, according to her account, put his hand under her jumper and shirt and fondled her breasts. She freed herself from the appellant’s clasp when another child approached and asked the complainant to go home with her.

The complainant mentioned the occurrence to a number of…

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 Hellwig

Details

AGLC: R v Hellwig [2006] QCA 179
Case: [2006] QCA 179
Decision Date: 26 May 2006

CaseChat Overview and Summary

The appeal before the court was from the appellant's conviction of indecent treatment of a child under the age of 16. The appellant was sentenced to four months imprisonment, wholly suspended for an operational period of 12 months. The central issue for determination was whether the trial judge had adequately directed the jury in accordance with section 21AW(2) of the Evidence Act 1977 (Qld), particularly in relation to the evidence that was pre-recorded under Part 2 Division 4A Subdivision 3 of the Evidence Act 1977 (Qld) and played at the trial.

The court examined whether there was a misdirection or non-direction by the trial judge that could be considered a miscarriage of justice. The appellant's counsel argued that the trial judge failed to properly direct the jury on the use of pre-recorded evidence, which was a crucial element of the prosecution's case. The court needed to determine if the alleged misdirection was significant enough to warrant a retrial. The appellant's legal team further contended that the jury's understanding of the evidence was compromised due to the trial judge's alleged inadequate direction, which could have influenced the jury's verdict. The court considered the gravity of the alleged error and its potential impact on the outcome of the trial.

After reviewing the proceedings and the arguments presented, the court found that the trial judge's direction to the jury was indeed deficient. The misdirection was considered significant as it potentially affected the jury's assessment of the pre-recorded evidence. Given the nature of the alleged error and its impact on the fairness of the trial, the court concluded that a miscarriage of justice had occurred. Consequently, the appeal was allowed, and the conviction was set aside. The court ordered a retrial to ensure that the appellant received a fair trial, free from the prejudicial effects of the misdirection.

Orders

Orders of the court

1. Appeal granted

2. Set aside conviction and order retrial

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 Hellwig [2006] QCA 179
PARTIES:	R v HELLWIG, Steven Walter (appellant)
FILE NO/S:	CA No 318 of 2005 DC No 572 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	26 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2006
JUDGES:	McPherson JA and Chesterman and Mullins JJ Joint reasons of Chesterman and Mullins JJ, separate reasons of McPherson JA concurring as to the orders made
ORDER:	1. Appeal granted 2. Set aside conviction and order retrial
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where appellant convicted of indecent treatment of a child under the age of 16 – where appellant sentenced to four months imprisonment wholly suspended for an operational period of 12 months – where evidence was pre-recorded under Pt 2 Div 4A Subdiv 3 of the Evidence Act 1977 (Qld) and played at trial – whether trial judge adequately directed jury under s 21AW(2) of the Evidence Act 1977 (Qld) Evidence Act 1977 (Qld), s 21AW(2), s 93A Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed R v DM [2006] QCA 79; CA No 260 of 2005 (21 March 2006), considered R v HAB [2006] QCA 80; CA No 259 of 2005 (21 March 2006), considered Tasker v Fullwood [1978] 1 NSWLR 20, followed
COUNSEL:	A J Rafter SC for the appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent