R v Henningsen - [2021] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v Henningsen [2021] QCA 34

PARTIES:

R
v
HENNINGSEN, Jason Paul
(appellant)

FILE NO/S:

CA No 330 of 2019
DC No 2765 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 November 2019 (Koppenol DCJ)

DELIVERED ON:

5 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2021

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of two counts of rape and one count of indecent treatment – where two ‘preliminary complaint witnesses’ refused to give statements to police – where those ‘preliminary complaint witnesses’ did not give evidence at trial – where the complainant’s credibility at issue – where the trial judge directed the jury they could not speculate as to what absent witnesses would have said or reasons for their absence – whether the trial judge erred in directing the jury in this way – whether the alleged misdirection or non-direction led to miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2)

Collins v The Queen (2018) 265 CLR 178; [2018] HCA 18, cited
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, applied
R v Oliver[2020] QCA 76, cited
R v PS (2016) 261 A Crim R 329; [2016] SASCFC 97, distinguished
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, distinguished

COUNSEL:

P K O’Higgins with A Mason for the appellant
J A Geary for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant was found guilty by a jury of two counts of rape and one count of indecent treatment. He appeals against his conviction on the ground that the trial judge misdirected the jury as to the use they could make of the refusal of certain potential witnesses to provide witness statements to police and to give evidence at trial. The ground of appeal relates to “preliminary complaint evidence”, which is evidence admissible under s 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) “of how and when any preliminary complaint was made by the complainant about the alleged commission of [a sexual offence] by the defendant”.
It is necessary to give only a brief summary of the case at trial. When the offences were alleged to have been committed in 2013 or 2014 the complainant was nine or ten years old. Her recorded statements in police interviews in 2016 and 2017 were in evidence at the trial, as was her pre-recorded evidence in July 2019 when she was 15 years old. The Crown case depended upon the jury accepting that the complainant’s evidence of the appellant’s offending conduct was honest…

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 Henningsen

Details

AGLC: R v Henningsen [2021] QCA 34
Case: [2021] QCA 34
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the case of R v Henningsen, the appellant was found guilty by a jury of two counts of rape and one count of indecent treatment. The crux of the appeal was the trial judge’s direction to the jury regarding the absence of two witnesses who had made preliminary complaints but did not give evidence. The trial judge had directed the jury that they could not speculate on what these witnesses might have said or the reasons for their non-appearance. The appellant argued that this direction was erroneous and resulted in a miscarriage of justice.

The central legal issues were whether the trial judge misdirected the jury by not allowing them to consider the implications of the absence of these witnesses and whether such a misdirection or non-direction led to an unsafe and unsatisfactory verdict. The appellant contended that the trial judge's direction was flawed because it precluded the jury from properly assessing the complainant's credibility in light of the witnesses' absence. The defence argued that the jury should have been allowed to consider the absence of these witnesses and its potential impact on the credibility of the complainant.

The court held that the trial judge's direction was not erroneous. The court reasoned that the jury was properly instructed not to speculate on the content of the absent witnesses' testimony or the reasons for their non-appearance, as such speculation could lead to an unfair assessment of the complainant's credibility. The court found that the direction was consistent with established legal principles that aim to prevent juries from making assumptions that might not be supported by the evidence presented. Consequently, the court concluded that the alleged misdirection or non-direction did not lead to a miscarriage of justice. The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

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 Henningsen [2021] QCA 34
PARTIES:	R v HENNINGSEN, Jason Paul (appellant)
FILE NO/S:	CA No 330 of 2019 DC No 2765 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 28 November 2019 (Koppenol DCJ)
DELIVERED ON:	5 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2021
JUDGES:	Fraser and McMurdo JJA and Boddice J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty by a jury of two counts of rape and one count of indecent treatment – where two ‘preliminary complaint witnesses’ refused to give statements to police – where those ‘preliminary complaint witnesses’ did not give evidence at trial – where the complainant’s credibility at issue – where the trial judge directed the jury they could not speculate as to what absent witnesses would have said or reasons for their absence – whether the trial judge erred in directing the jury in this way – whether the alleged misdirection or non-direction led to miscarriage of justice Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A(2) Collins v The Queen (2018) 265 CLR 178; [2018] HCA 18, cited Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, applied R v Oliver[2020] QCA 76, cited R v PS (2016) 261 A Crim R 329; [2016] SASCFC 97, distinguished Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, distinguished
COUNSEL:	P K O’Higgins with A Mason for the appellant J A Geary for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent