R v Henry - [1992] QCA 336

COURT OF APPEAL

[1992] QCA 336

MACROSSAN CJ McPHERSON JA MOYNIHAN J

CA No 166 of 1992

THE QUEEN

KEVIN ALLAN HENRY	Appellant
CA No 147 of 1992
THE QUEEN
v.
MARGARET JOAN BOB	Applicant
CA No 160 of 1992
THE QUEEN
v.
SUSAN LESLIE ALBURY	Applicant
BRISBANE ..DATE 11/09/92 JUDGMENT

THE CHIEF JUSTICE: I shall ask Mr Justice McPherson to deliver his reasons first.

McPHERSON JA: Kevin Henry appeals against his conviction for rape and murder of Linda Leidig. The alleged offences took place on about 31 August 1991 at Rockhampton. On the following day, the naked body of the deceased woman was found floating in the Fitzroy River. Medical evidence was that she had died from drowning, but that prior head injuries she had sustained contributed to her death.

She was apparently unconscious when she was put into the river. It was alleged that the head injuries were sustained in a brutal assault or series of assaults carried out by women who are applicants before us for leave to appeal against sentence. The deceased was considered by those women to have been at fault in having sexual relations with a man who was regarded by those women, or one of them, as belonging to one of their number.

The appellant was arrested for drunkenness on the afternoon of 1 September. He was placed in a cell at the watch-house together with 2 other men, Colin Booth and Lyle Barnes, who were also facing charges of drunkenness. While they were all in the cell, Constable Farrell of the watch-house activated a recording device

which recorded conversations that followed among those 3 men.

In the course of those conversations, the accused can, it is said, be heard saying of the deceased woman, "I threw her in.” It was an audio and video recording, which was admitted in evidence and played to the jury. The sole ground of the appeal against conviction is that the recording, or the admissions it contained, should not have been admitted in evidence.

Three reasons for this were advanced on appeal. One is that the prejudicial effect of the evidence outweighed its probative value. This basis of objection does not in terms seem to have been advanced at the trial. But, in any event, it is futile. There is no consideration of unfairness, or otherwise, that would dictate exclusion from evidence of the recording or recorded conversations in this case. And, in so far as the conversation contains admissions by the appellant, the statement "I threw her in" has a probative value that is plainly very strong indeed.

The second basis of complaint is that the tape recording is of very poor quality; that is to say, that the conversation or conversations recorded on the recording are indistinct. This objection was advanced at the trial, and was considered by the learned trial Judge. His Honour listened to the tape himself, or to those parts of it that are relevant.

Having done so, he…

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 Henry

Details

AGLC: R v Henry [1992] QCA 336
Case: [1992] QCA 336
Decision Date: 11/09/1992

CaseChat Overview and Summary

The case of R v Henry before the Court of Appeal involved the conviction of Kevin Allan Henry for the rape and murder of Linda Leidig, as well as the sentences of three individuals involved in the assault that led to the victim's death. The appeal against conviction focused on the admissibility of a recorded conversation in which Henry allegedly admitted his involvement in the crime. The legal issues involved the admissibility of the recording under the Invasion of Privacy Act 1971 and whether the conversation was "private" within the meaning of the Act.

The court considered the quality of the recording, finding it was sufficiently intelligible for the jury to determine its meaning. The court also held that the conversation did not qualify as "private" under the Act because the circumstances in the cell at the watch-house did not reasonably exclude the possibility of being overheard by others. Consequently, the court dismissed the appeal against conviction. The court also considered the applications for leave to appeal against sentence, finding that the sentences were not excessive given the nature of the crimes. The appeals against sentence were also refused.

The final order of the Court was that the appeal against conviction was dismissed and the applications for leave to appeal against sentence were refused.

Orders