R v Hoban

[2000] QCA 384

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hoban [2000] QCA 384

PARTIES:

R
v
HOBAN, Graham Parnell
(appellant)

FILE NO/S:

CA No 173 of 2000
DC No 201 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sent

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2000

JUDGE:

McPherson and Thomas JJA, Jones J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT – GENERALLY– evidence of mendacity of complainant – exception to collateral evidence rule – limited nature of exception – “feeble and petty” class of evidence – where complainant admitted she had a reputation for untruthfulness until she was 19 – where appellant sought to call evidence from persons who knew the complainant’s reputation – scope of rule permitting impeachment of witness by persons swearing that they would not believe the witness on her oath

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES -whether sentence of eight and a half years manifestly excessive

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – POWER TO DISMISS WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES - application of the proviso in case where evidence excluded

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER IRREGULARITIES - whether counts of indecent dealing, attempted sodomy and rape sufficiently particularised

Criminal Code (Qld), s 668E(1A)
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

R v Fogarty CA No 418 of 1996, 6 December 1996, considered
R v Gunewardene [1951] 2 KB 600, considered
R v Laycock and Stokes [1999] QCA 307, CA No 465 & 487 of 1998, 6 August 1999
S v The Queen (1989) 168 CLR 266, considered

Swaffield v The Queen (1998) 192 CLR 159, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
D Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I have read and agree with the reasons of Thomas JA in this matter.  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

1. THOMAS JA:  The appellant was convicted of eight sexual offences committed upon his stepdaughter, “X”.  The details of the convictions, with the dates between…