R v Holzinger - [2016] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holzinger [2016] QCA 160

PARTIES:

R
v
HOLZINGER, Werner Leo
(appellant/applicant)

FILE NO/S:

CA No 243 of 2015
DC No 517 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 25 September 2015; Date of Sentence: 28 September 2015

DELIVERED ON:

17 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2016

JUDGES:

Philip McMurdo JA and Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted by a jury of three counts of rape, three counts of indecently dealing with a child under 16 years and two counts of exposing a child under 16 years to an indecent act – where, in relation to the counts of rape, the learned trial judge directed the jury as to the availability of the alternative verdict of indecent dealing – where the appellant contends that the learned trial judge erred because the jury ought to have been directed as to the alternative of attempted rape – whether the learned trial judge erred in directing as to alternative verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of three counts of rape – where the prosecution relied solely on the complainant’s evidence at trial – where the complainant’s initial police interviews demonstrated an inability to clearly discriminate between the inside and outside of her genitals – where the complainant described the content of a photograph the subject of a separate count in similar terms to the events constituting the rape charges, although the girl in the subject photograph was clothed – where the complainant’s preliminary complaint to her aunt was equivocal as to penetration and she did not refer to penetration in her complaint to her mother – where medical evidence was neutral on the issue of penetration – where the appellant contends that the jury could not be satisfied upon the complainant’s evidence that penetration had been effected – whether it was open to the jury to be satisfied that penetration was effected

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted on the alternative charge to rape of indecently dealing with a child under 16 (count 1) – where the appellant was acquitted on one count of indecently exposing a child under 16 to an indecent act (count 2) – where the offences were alleged to have occurred at the same time – where the appellant contends that because there was no material difference in the quality of evidence between the two counts the…

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 Holzinger

Details

AGLC: R v Holzinger [2016] QCA 160
Case: [2016] QCA 160
Decision Date: 17 June 2016

CaseChat Overview and Summary

The appellant, Holzinger, appealed against his conviction by a jury for various offences including rape, indecent dealing with a child under 16, and exposing a child under 16 to an indecent act. The appeal was heard in the relevant appellate court in Australia. Holzinger raised multiple grounds for appeal, focusing on alleged errors in the trial judge's directions to the jury regarding alternative verdicts, the sufficiency of the evidence to prove penetration in the rape charges, and the consistency of the jury's verdicts across different counts.

The court was required to determine whether the trial judge erred in directing the jury on the alternative verdicts available, particularly regarding the omission of the alternative of attempted rape. The court also needed to assess whether the jury could have been satisfied beyond reasonable doubt that penetration had occurred based on the complainant's evidence, given her initial confusion about the anatomical details in her police interviews. Furthermore, the court examined the consistency of the jury's verdicts across different counts, particularly considering the similarity in the quality of evidence and the fact that the offences were alleged to have occurred at the same time.

The court found that the trial judge did not err in directing the jury on alternative verdicts, as the omission of attempted rape was not a valid alternative to indecent dealing in the circumstances. The court also concluded that the jury was properly satisfied beyond reasonable doubt that penetration had occurred, despite the complainant's initial confusion, based on the totality of the evidence presented. Regarding the consistency of the verdicts, the court held that there was no requirement for the jury to acquit on one count because of doubt on another, given the different nature of the offences and the jury's prerogative to convict on some counts and acquit on others.

The court dismissed the appeal against conviction and refused leave to appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

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 Holzinger [2016] QCA 160
PARTIES:	R v HOLZINGER, Werner Leo (appellant/applicant)
FILE NO/S:	CA No 243 of 2015 DC No 517 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 25 September 2015; Date of Sentence: 28 September 2015
DELIVERED ON:	17 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2016
JUDGES:	Philip McMurdo JA and Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted by a jury of three counts of rape, three counts of indecently dealing with a child under 16 years and two counts of exposing a child under 16 years to an indecent act – where, in relation to the counts of rape, the learned trial judge directed the jury as to the availability of the alternative verdict of indecent dealing – where the appellant contends that the learned trial judge erred because the jury ought to have been directed as to the alternative of attempted rape – whether the learned trial judge erred in directing as to alternative verdicts CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of three counts of rape – where the prosecution relied solely on the complainant’s evidence at trial – where the complainant’s initial police interviews demonstrated an inability to clearly discriminate between the inside and outside of her genitals – where the complainant described the content of a photograph the subject of a separate count in similar terms to the events constituting the rape charges, although the girl in the subject photograph was clothed – where the complainant’s preliminary complaint to her aunt was equivocal as to penetration and she did not refer to penetration in her complaint to her mother – where medical evidence was neutral on the issue of penetration – where the appellant contends that the jury could not be satisfied upon the complainant’s evidence that penetration had been effected – whether it was open to the jury to be satisfied that penetration was effected CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted on the alternative charge to rape of indecently dealing with a child under 16 (count 1) – where the appellant was acquitted on one count of indecently exposing a child under 16 to an indecent act (count 2) – where the offences were alleged to have occurred at the same time – where the appellant contends that because there was no material difference in the quality of evidence between the two counts the…