R v Hooper - [1999] QCA 310

IN THE COURT OF APPEAL [1999] QCA 310
SUPREME COURT OF QUEENSLAND
CA No 37 of 1999
Brisbane
[R v Hooper]
THE QUEEN
v
GARETH ANDREW HOOPER
Appellant
de Jersey J
McMurdo P
Demack J

Judgment delivered 6 August 1999
Separate reasons for judgment of each member of the Court, McMurdo P dissenting.
APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS - whether trial judge properly allowed trial on an indictment alleging separate instances of indecent dealing against two complainants - whether the evidence in respect of each count was admissable in proof of the other - Thomas JA’s questions in relation to such propensity evidence in O’Keefe applied - whether the similar nature of the propensity evidence was not reasonably explicable on the basis of concoction.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS - whether trial judge properly allowed trial on an indictment alleging two separate instances of indecent dealing where another judge at an earlier, ultimately aborted, trial on the same indictment had directed that counts relating to each complainant be tried separately - whether such direction amounted to a direction binding the eventual trial judge under Criminal Code s 592A(3) - whether leave to “re-open” that direction was implicitly sought - whether trial judge saw “special reason” warranting reconsideration.
de Jesus v R (1987) 61 ALJR 1
Hoch v R (1988) 165 CLR 292
Pfennig v R (1994-5) 182 CLR 461
R v Best [1998] 4 VR 603
R v Carne (CA No 553 of 1996, 24 June 1997)
R v O'Keefe (CA No 332 of 1998, 5 March 1999)
R v TJB [1998] 4 VR 621
Criminal Code ss 592A(1), 592A(2), 592A(3)
Counsel: Mr G Long for the appellant
Mr D Meredith for the respondent
Solicitors: Legal Aid Queensland for the appellant.
Director of Public Prosecutions (Queensland) for the respondent
Hearing date: 3 June 1999
REASONS FOR JUDGMENT - de JERSEY CJ
Judgment delivered 6 August 1999
1 Two issues arise on this appeal. (The originally specified ground of appeal, that the verdicts are “unsafe and unsatisfactory”, was not pursued, and the two live grounds were added by leave.) The first question is whether the learned trial judge properly allowed the trial to proceed on an indictment alleging separate instances of indecent dealing against two complainant boys. Determining this question involves consideration of Pfennig v R (1994-5) 182 CLR 461, as helpfully recently explained by the Court of Appeal in R v O’Keefe (CA No 332 of 1998, 5 March 1999). The second question, more procedural in character, is whether the judge was right in allowing the trial to proceed on the indictment…

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 Hooper

Details

AGLC: R v Hooper [1999] QCA 310
Case: [1999] QCA 310
Decision Date: 6/08/1999

CaseChat Overview and Summary

In the case of R v Hooper, the appellant challenged his conviction and sentence on several grounds, primarily focusing on alleged errors by the trial judge in handling similar fact evidence. The appeal was heard in the Court of Criminal Appeal of Australia, where the judges were tasked with determining whether the trial judge properly managed the evidence regarding separate instances of indecent dealing against two different complainants. The central legal issues revolved around whether the trial judge had correctly admitted the similar fact evidence and whether it was properly weighed against the risk of prejudice to the appellant. The court also needed to assess whether the nature of the similar fact evidence was reasonably explicable without suggesting concoction.

The Court of Criminal Appeal examined the application of precedents such as Hoch v R and Pfennig, particularly the principles articulated by Thomas JA in O’Keefe. They found that the evidence, while relevant to measuring probabilities, needed to meet stringent criteria to avoid undue prejudice. The court concluded that the trial judge had not sufficiently addressed the prejudicial impact of the similar fact evidence, leading to a misdirection. The evidence concerning the appellant’s propensity and the manner in which it was expressed did not sufficiently mitigate the prejudicial effect on the jury’s decision-making process. Consequently, the court allowed the appeal, quashed the convictions, and ordered separate re-trials for each set of offences to ensure a fair trial.

The court emphasised the importance of correctly balancing the probative value of similar fact evidence against its prejudicial effect. The failure to do so in this case necessitated a re-trial to prevent any miscarriage of justice. The judges underscored the necessity of adhering to established legal principles when handling such sensitive evidence, highlighting the need for meticulous judicial oversight to protect the rights of all parties involved. The final orders of the court were to quash the convictions and mandate separate re-trials for each set of charges against the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEMACK J

It is always regrettable when re-trials are necessary especially in cases of this type which are traumatic for both the complainants, the appellant and their family and friends. Nevertheless that is what justice requires in this case. I would allow the appeal, quash the convictions and order separate re-trials in respect of each set of offences. REASONS FOR JUDGMENT – Judgment delivered 6 August 1999 I have had the advantage of reading the draft reasons for judgment of both the Chief Justice and the President, and will not refer at length to the facts of this case which are sufficiently mentioned in those reasons. The present case involves similar fact evidence, and its purpose is not to identify the appellant, but to prove what he did. In the words of Evatt J in Martin v Osborne (1936) 55 CLR 367, at 385, the evidence allows for “admeasuring the probabilities or improbabilities of the fact or event in issue” (quoted by Mason CJ, Wilson and Gaudron JJ in Hoch v R (1988) 165 CLR 292, at 294). However, because such evidence can be impermissibly prejudicial, it is only admitted if it has the cogency that has been identified in the cases. Where the propensity evidence consists of similar incidents to those charged, the significant aspects of the evidence that must be addressed are the particular propensity and the way in which it is expressed. Hoch was a case that involved similar factual issues to those we are concerned with here. In Pfennig, the evidence of what the appellant had done to another boy, namely abducted him, raped him and left false clues as to what had happened to him, was admitted as part of the proof that he had murdered a boy whose body had not been found. The only possible inferences at the trial were that this boy had drowned or had been abducted. The evidence excluded drowning. The trial judge, on a voir dire, had held that abduction for sexual purposes was the most likely reason for any abduction. The evidence about the other abduction was circumstantial evidence tending to identify the person responsible for the death of the boy who was abducted. Thus Hoch is more significant to the resolution of the issues here than Pfennig, although the tests found in Pfennig by Thomas JA in O’Keefe (CA No 332 of 1998) are properly treated as binding on us. When Hoch’s significance to this appeal is seen, the matters referred to in that case, as rendering the similar fact evidence admissible, become important. They are referred to in the judgment of Brennan and Dawson JJ (at 298):- These particulars show what the propensity was - “penis play” - and the way that propensity was expressed - upon boys in a home where the appellant was a supervisor, while the boys were showering. In other words, the evidence about the expression of the propensity showed how the appellant chose the persons upon whom his propensity was expressed, the circumstances in which it was expressed and the manner in which he sought to conceal his improper conduct.

Ratio Decidendi

Legal Principle Established

Established by: DEMACK J

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IN THE COURT OF APPEAL	[1999] QCA 310
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS - whether trial judge properly allowed trial on an indictment alleging separate instances of indecent dealing against two complainants - whether the evidence in respect of each count was admissable in proof of the other - Thomas JA’s questions in relation to such propensity evidence in O’Keefe applied - whether the similar nature of the propensity evidence was not reasonably explicable on the basis of concoction.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS - whether trial judge properly allowed trial on an indictment alleging two separate instances of indecent dealing where another judge at an earlier, ultimately aborted, trial on the same indictment had directed that counts relating to each complainant be tried separately - whether such direction amounted to a direction binding the eventual trial judge under Criminal Code s 592A(3) - whether leave to “re-open” that direction was implicitly sought - whether trial judge saw “special reason” warranting reconsideration.
de Jesus v R (1987) 61 ALJR 1 Hoch v R (1988) 165 CLR 292 Pfennig v R (1994-5) 182 CLR 461 R v Best [1998] 4 VR 603 R v Carne (CA No 553 of 1996, 24 June 1997) R v O'Keefe (CA No 332 of 1998, 5 March 1999) R v TJB [1998] 4 VR 621
Criminal Code ss 592A(1), 592A(2), 592A(3)
Counsel:	Mr G Long for the appellant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	3 June 1999
REASONS FOR JUDGMENT - de JERSEY CJ