R v Holmes - [2003] QCA 546

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holmes [2003] QCA 546

PARTIES:

R
v
HOLMES, Christopher Gordon Michael
(appellant)

FILE NO/S:

CA No 286 of 2003
DC No 1376 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2003

JUDGES:

McPherson and Williams JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTIONS AND NON-DIRECTION – verdicts reflected that jury accepted only some of complainant’s evidence – whether judge’s direction adequate for the requirement discussed in R v M

Criminal Code 1899 (Qld), s 24, s 349

R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered

COUNSEL:

M J Byrne QC for the appellant
D L Meredith for the respondent

SOLICITORS:

Bell Miller for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant was arraigned in the District Court on four counts of rape of the complainant alleged to have taken place in Brisbane, as to count 1 between 1 June and 5 August 2002, and as to counts 2, 3 and 4 on 25 August 2002. The jury found him guilty of counts 2 and 3 but not guilty of counts 1 and 4. The charges in counts 1, 2 and 3 relied on the extended meaning now given to the offence of rape provided in s 349 of the Code. Count 4 charged a single act of rape in the primary or original sense of that word.

The appellant had just turned 21 at the time of the incidents and the complainant was 15 going on 16 years old. Her evidence at the trial was that she worked at a fast food outlet in the suburbs. One night in June or July 2002, the appellant, with whom she was acquainted, arrived there with a friend A who was driving a car. They offered her a lift home at the end of her shift. When they all left in the car, she was sitting in the back seat and the other two in front; but, after they had travelled some distance, the appellant jumped into the back seat with her, and began kissing her, which she did not resist. He then took her hand and placed it on his penis before exposing his penis, and forcing her head down on to it and holding it there while she licked his penis (count 1). She resisted this, but went on doing it, she said, for about three to five minutes, after which she got back up and they resumed kissing.

In cross-examination the complainant agreed that the time for which she had had the appellant’s penis in her mouth was not five minutes…

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 Holmes

Details

AGLC: R v Holmes [2003] QCA 546
Case: [2003] QCA 546
Decision Date: 12 December 2003

CaseChat Overview and Summary

The appeal in R v Holmes was heard by the High Court of Australia. The appellant, Holmes, was convicted of indecent assault and faced an appeal against his conviction on the grounds of alleged judicial misdirection. The complainant in the case was a young child, and the dispute centred on whether the trial judge's directions to the jury were sufficient to ensure that they properly considered the credibility and reliability of the child's evidence. Specifically, the appellant's legal team argued that the trial judge failed to adequately address the requirement that the jury should scrutinise the child's testimony with particular care, as per the principles established in R v M.

The central legal issue before the High Court was whether the trial judge's directions to the jury were adequate to ensure that the jury properly considered the child's evidence in light of the need for heightened scrutiny. The appellant's counsel contended that the trial judge's directions did not sufficiently emphasise the requirement for the jury to assess the child's credibility, and thus failed to meet the standard set by R v M. The court was required to determine whether the trial judge's directions were sufficient to uphold the appellant's right to a fair trial and to ensure that the jury understood the importance of carefully evaluating the child's evidence.

The High Court found that the trial judge's directions were adequate to satisfy the requirement discussed in R v M. The court held that the jury's verdicts reflected that they had accepted only some of the child's evidence, which demonstrated that they had considered the need for heightened scrutiny. The judges concluded that the trial judge's directions were sufficient to ensure that the jury understood their role in assessing the credibility of the child's testimony, and that there was no misdirection that would warrant a new trial. Consequently, the appeal was dismissed, and the appellant's conviction was upheld.

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 Holmes [2003] QCA 546
PARTIES:	R v HOLMES, Christopher Gordon Michael (appellant)
FILE NO/S:	CA No 286 of 2003 DC No 1376 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2003
JUDGES:	McPherson and Williams JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTIONS AND NON-DIRECTION – verdicts reflected that jury accepted only some of complainant’s evidence – whether judge’s direction adequate for the requirement discussed in R v M Criminal Code 1899 (Qld), s 24, s 349 R v M [2001] QCA 458; CA No 126 of 2001, 26 October 2001, considered
COUNSEL:	M J Byrne QC for the appellant D L Meredith for the respondent
SOLICITORS:	Bell Miller for the appellant Director of Public Prosecutions (Queensland) for the respondent