R v Hess - [2008] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hess [2008] QCA 48

PARTIES:

R
v
HESS, Graham John
(appellant)

FILE NO/S:

CA No 295 of 2007
DC No 1112 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2008

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal

2.   Set aside the verdict

3.   Order a re-trial

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the appellant was convicted of one count of rape – where the jury were improperly informed that the appellant had a criminal history – where the appellant did not give evidence – where the primary judge gave directions to the jury to disregard the appellant’s criminal history – whether the prejudicial effect of the evidence of the appellant’s criminal history was overcome by the directions given – whether the failure of the primary judge to exercise his discretion and discharge the jury and order a retrial resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURTS BELOW – WHERE APPEAL ALLOWED – where evidence was admitted of uncharged acts of workplace physical contact, touching and sexual banter by the appellant – where there was an absence of particulars – where there was no objection to the evidence at trial – whether the evidence was inadmissible – whether the probative value of the evidence outweighed its prejudicial effect – whether the jury should have been directed to disregard the evidence – whether the admission of the evidence resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where there were inconsistencies in the complainant’s evidence – where the complainant had an extensive criminal record, including convictions for offences involving dishonesty – whether the primary judge’s directions in relation to the complainant’s credibility and evidence were adequate – whether the failure to give more specific directions in relation to complainant’s evidence and credibility resulted in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where evidence was wrongly admitted – where the reception of inadmissible evidence was not addressed by appropriate directions – whether concerns as to the complainant’s credibility and evidence warranted more specific directions by the primary judge – whether, when viewed as a whole, the guilt of the appellant could be satisfied beyond a reasonable doubt – whether there…

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 Hess

Details

AGLC: R v Hess [2008] QCA 48
Case: [2008] QCA 48
Decision Date: 7 March 2008

CaseChat Overview and Summary

In the Supreme Court of Queensland, Hess was convicted of one count of rape. The appeal against this conviction was based on several grounds, including the improper admission of evidence of Hess's criminal history, uncharged acts of workplace physical contact, touching, and sexual banter, inconsistencies in the complainant's evidence, and alleged misdirections by the primary judge regarding the complainant's credibility. Hess argued that these issues individually and collectively resulted in a miscarriage of justice.

The legal issues before the court involved whether the prejudicial effect of the evidence of Hess's criminal history was adequately countered by the directions given to the jury to disregard it. Another issue was whether the evidence of uncharged acts was inadmissible, and if so, whether its admission, without appropriate directions, resulted in a miscarriage of justice. The court also had to consider whether the primary judge's directions regarding the complainant's credibility were sufficient, given her extensive criminal record involving dishonesty.

The court found that the evidence of Hess's criminal history was improperly before the jury and that the directions given were insufficient to counter its prejudicial effect. The uncharged acts evidence was deemed inadmissible and its admission without proper direction contributed to a miscarriage of justice. The court held that the primary judge's directions regarding the complainant's credibility were inadequate, especially in light of her criminal history, which undermined her reliability as a witness. The court concluded that, considering all the errors, the appellant's guilt could not be established beyond reasonable doubt.

Accordingly, the appeal was allowed, the verdict set aside, and a re-trial ordered. The court's decision underscored the importance of proper evidentiary standards and the need for adequate judicial directions in criminal trials to ensure a fair process and just outcome.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the verdict

3. Order a re-trial

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hess [2008] QCA 48
PARTIES:	R v HESS, Graham John (appellant)
FILE NO/S:	CA No 295 of 2007 DC No 1112 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2008
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal 2. Set aside the verdict 3. Order a re-trial
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the appellant was convicted of one count of rape – where the jury were improperly informed that the appellant had a criminal history – where the appellant did not give evidence – where the primary judge gave directions to the jury to disregard the appellant’s criminal history – whether the prejudicial effect of the evidence of the appellant’s criminal history was overcome by the directions given – whether the failure of the primary judge to exercise his discretion and discharge the jury and order a retrial resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURTS BELOW – WHERE APPEAL ALLOWED – where evidence was admitted of uncharged acts of workplace physical contact, touching and sexual banter by the appellant – where there was an absence of particulars – where there was no objection to the evidence at trial – whether the evidence was inadmissible – whether the probative value of the evidence outweighed its prejudicial effect – whether the jury should have been directed to disregard the evidence – whether the admission of the evidence resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where there were inconsistencies in the complainant’s evidence – where the complainant had an extensive criminal record, including convictions for offences involving dishonesty – whether the primary judge’s directions in relation to the complainant’s credibility and evidence were adequate – whether the failure to give more specific directions in relation to complainant’s evidence and credibility resulted in a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where evidence was wrongly admitted – where the reception of inadmissible evidence was not addressed by appropriate directions – whether concerns as to the complainant’s credibility and evidence warranted more specific directions by the primary judge – whether, when viewed as a whole, the guilt of the appellant could be satisfied beyond a reasonable doubt – whether there…