R v HZ

Case [2005] QCA 468 14 December 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v HZ [2005] QCA 468

PARTIES:

R
v
HZ
(appellant/applicant)

FILE NO/S:

CA No 155 of 2005
DC No 5A of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

14 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2005

JUDGES:

McPherson and Keane JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction and application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR WHERE MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where appellant was convicted after a trial of unlawful carnal knowledge of a girl under 16 years of age in his care and sentenced to three and a half years imprisonment - where the appellant had been the only adult present at a sleepover party organised by the 15 year old daughter of his de facto wife for a number of her female friends - where large quantities of alcohol were consumed during the course of the evening - where it was alleged that the appellant had sexually interfered with two of the young women who were present - where evidence was proposed to be led that one of the complainants had told the appellant's de facto wife that the allegations against the appellant had been made deliberately as part of a conspiracy to punish the appellant and his de facto - where this complainant had given pre-recorded evidence - where the trial judge refused to allow the relevant complainant to be recalled to be cross-examined about what it was that had allegedly been said to the appellant's de facto - whether the decision by the learned trial judge to exercise his discretion in this way had led to a miscarriage of justice

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the appellant had been found guilty of unlawful carnal knowledge as an alternative to rape - whether it was reasonable for the jury to accept the evidence of the complainant that penile penetration had occurred while rejecting her evidence that such penetration had been non-consensual

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where appellant was convicted after a trial of unlawful carnal knowledge of a girl under 16 years of age in his care and sentenced to three and a half years imprisonment - where the appellant had a minor criminal history - where 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 HZ

Details

AGLC: R v HZ [2005] QCA 468
Case: [2005] QCA 468
Decision Date: 14 December 2005

CaseChat Overview and Summary

The appellant, HZ, was convicted by a jury of unlawful carnal knowledge of a girl under 16 years of age in his care. The conviction stemmed from a sleepover party organised by the 15-year-old daughter of his de facto wife for her female friends, during which large quantities of alcohol were consumed. The appellant was the only adult present and was accused of sexually interfering with two of the young women. The case was heard in the Queensland Court of Appeal. The appellant appealed against his conviction, arguing that the trial judge's decision to refuse the recall of a complainant to be cross-examined about alleged statements made to the appellant's de facto wife resulted in a miscarriage of justice. Additionally, the appellant sought leave to appeal against his sentence, arguing that the three and a half years imprisonment was manifestly excessive.

The legal issues before the court were whether the trial judge's decision to prevent the complainant from being recalled to the stand constituted a miscarriage of justice and whether the jury's verdict was unreasonable or unsustainable. The appellant contended that the complainant's pre-recorded evidence should have been disregarded because it was based on an assertion that the allegations were part of a conspiracy to punish the appellant. The court also needed to determine whether the jury's acceptance of the complainant's evidence that penile penetration occurred while rejecting her claim that such penetration was non-consensual was reasonable. Lastly, the court considered whether the sentence was manifestly excessive given the appellant's minor criminal history and the abuse of his position as the step-parent of one of the complainant's friends.

The court found that the trial judge's decision to refuse the recall of the complainant was not an abuse of discretion and did not result in a miscarriage of justice. The evidence regarding the alleged conspiracy was considered to be collateral and its probative value was outweighed by the risk of unfair prejudice. The court held that the jury's acceptance of the complainant's evidence that penile penetration occurred while rejecting her claim that such penetration was non-consensual was reasonable, given the overall circumstances and the evidence presented. Furthermore, the court found that the sentence was not manifestly excessive, taking into account the appellant's minor criminal history and the serious abuse of his position. The appeal against conviction and the application for leave to appeal against sentence were both dismissed.

The final orders of the court were that the appeal against the conviction and the application for leave to appeal against sentence were dismissed. The appellant's conviction for unlawful carnal knowledge and his sentence of three and a half years imprisonment remained in place.

Orders

Orders of the court

Appeal against conviction and application for leave to appeal against sentence dismissed

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.

Citations

AGLC Citation

R v HZ [2005] QCA 468

Most Recent Citation

The Queen v Christian (No 2) [2018] NFSC 4

Cases citing this decision · 3 of 3 shown

The Queen v Christian (No 2)
[2018] NFSC 4 Para 23

…A and Loveday J, 6 December 1990); R v T (1990) 47 A Crim R 29; R v Phillips (2009) 2 Qd R 263; [2009] QCA 57; R v Carmichael [2009] QCA 41; R v HZ [2005] QCA 468; R v T; ex parte Attorney-General (Qld) (unreported, Supreme Court of Queensland Court of Appeal, McPherson JA, Byrne and Philippides JJ, 12 April 2002…
R v Phillips
[2009] QCA 57 Para 1

…lcohol and took advantage of the teenager’s intoxication to have carnal knowledge of her. There was no prior intimacy between them of any kind. [15][2005] QCA 468.…
R v Clifford; ex parte
[2006] QCA 492 Para 1

…ge of the complainant.[5] The respondent's offence was, at worst, opportunistic; it was certainly not predatory.[6] [4]Cf R v C [2002] QCA 46; R v HZ [2005] QCA 468. [5]Cf R v T; ex parte Attorney-General of Queensland [2002] QCA 132. [6]Cf R v HZ [2005] QCA 468 at [34].…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

Ali v The Queen
[2005] HCA 8 Para 1

…974) 131 CLR 510 at 517; RPS v The Queen (2000) 199 CLR 620 at 632 [22]; Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34], 65 [88]; Ali v The Queen [2005] HCA 8 at [7], (2005) 79 ALJR 662 at 664 [7].…
R v AS
[2004] QCA 220 Para 1

…nt and K, or that the appellant saw his interaction with her as anything more than an opportunity for his own physical gratification.[5] [5]Cf R v AS [2004] QCA 220; CA No 160 of 2004, 2 July 2004, where the plainly consensual nature of the acts alleged, demonstrations of real remorse and an early guilty plea res…
R v Waerea; ex parte
[2003] QCA 20 Para 1

…, 12 April 2002. See also R v B; ex parte A-G (Qld) [2002] QCA 308; CA 141 of 2002, 23 August 2002 esp at [15] - [17]; R v Waerea; ex parte A-G (Qld) [2003] QCA 20; CA No 287 and CA No 307 of 2002, 7 February 2003 esp at [12] - [17].…
MFA v The Queen
[2002] HCA 53 Para 1

…relevant test for determining whether or not the verdict of a jury can be said to be unreasonable was confirmed by the High Court in MFA v The Queen [2002] HCA 53 at [25], [59] - [61]; (2002) 213 CLR 606 at 614 - 615, 624.…
R v B; ex parte
[2002] QCA 308 Para 1

…ise of the discretion reposed in the learned sentencing judge. [7][2002] QCA 132; CA No 30 of 2002, 12 April 2002. See also R v B; ex parte A-G (Qld) [2002] QCA 308; CA 141 of 2002, 23 August 2002 esp at [15] - [17]; R v Waerea; ex parte A-G (Qld) [2003] QCA 20; CA No 287 and CA No 307 of 2002, 7 February 2003 es…
R v T; ex parte Attorney-General of Queensland
[2002] QCA 132 Para 1

…ss-examination, the sentence in this case was well within the range of a sound exercise of the discretion reposed in the learned sentencing judge. [7][2002] QCA 132; CA No 30 of 2002, 12 April 2002. See also R v B; ex parte A-G (Qld) [2002] QCA 308; CA 141 of 2002, 23 August 2002 esp at [15] - [17]; R v Waerea; e…
Azzopardi v the Queen
[2001] HCA 25 Para 1

…ints were deliberately false. [3] Ratten v The Queen (1974) 131 CLR 510 at 517; RPS v The Queen (2000) 199 CLR 620 at 632 [22]; Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34], 65 [88]; Ali v The Queen [2005] HCA 8 at [7], (2005) 79 ALJR 662 at 664 [7].…
RPS v The Queen
[2000] HCA 3 Para 1

…a similar view of the appellant's case that V's complaints were deliberately false. [3] Ratten v The Queen (1974) 131 CLR 510 at 517; RPS v The Queen (2000) 199 CLR 620 at 632 [22]; Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34], 65 [88]; Ali v The Queen [2005] HCA 8 at [7], (2005) 79 ALJR 662 at 664 [7].…
R v Burns
[1999] QCA 189 Para 35

…[1]Cf Brown v Petranker (1991) 22 NSWLR 717 at 728 - 729; R v Masters (1992) 59 A Crim R 445 at 473; R v Burns [1999] QCA 189 at [35] - [38] per Muir J; (1999) 107 A Crim R 330 at 336 - 337.…
Petranker v Brown
[1991] HCATrans 208

…[1]Cf Brown v Petranker (1991) 22 NSWLR 717 at 728 - 729; R v Masters (1992) 59 A Crim R 445 at 473; R v Burns [1999] QCA 189 at [35] - [38] per Muir J; (1999) 107 A Crim R 330 at 336 - 337.…
Ahern v The Queen
[1988] HCA 39 Para 1

…any view, be regarded as a statement made in furtherance of the conspiracy.[2] [2]Cf Tripodi v The Queen (1961) 104 CLR 1 at 6 - 8; Ahern v The Queen (1988) 165 CLR 87 at 92 - 95, 100.…
Ratten v The Queen
[1974] HCA 35 Para 1

…incing, and that the jury would have taken a similar view of the appellant's case that V's complaints were deliberately false. [3] Ratten v The Queen (1974) 131 CLR 510 at 517; RPS v The Queen (2000) 199 CLR 620 at 632 [22]; Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34], 65 [88]; Ali v The Queen [2005] HCA 8 at…
Tripodi v the Queen
[1961] HCA 22 Para 1

…portantly, V's assertion to IM could not, on any view, be regarded as a statement made in furtherance of the conspiracy.[2] [2]Cf Tripodi v The Queen (1961) 104 CLR 1 at 6 - 8; Ahern v The Queen (1988) 165 CLR 87 at 92 - 95, 100.…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
21AK 2 mentions (from Para 1)

CITATION:	R v HZ [2005] QCA 468
PARTIES:	R v HZ (appellant/applicant)
FILE NO/S:	CA No 155 of 2005 DC No 5A of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	14 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2005
JUDGES:	McPherson and Keane JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction and application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR WHERE MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where appellant was convicted after a trial of unlawful carnal knowledge of a girl under 16 years of age in his care and sentenced to three and a half years imprisonment - where the appellant had been the only adult present at a sleepover party organised by the 15 year old daughter of his de facto wife for a number of her female friends - where large quantities of alcohol were consumed during the course of the evening - where it was alleged that the appellant had sexually interfered with two of the young women who were present - where evidence was proposed to be led that one of the complainants had told the appellant's de facto wife that the allegations against the appellant had been made deliberately as part of a conspiracy to punish the appellant and his de facto - where this complainant had given pre-recorded evidence - where the trial judge refused to allow the relevant complainant to be recalled to be cross-examined about what it was that had allegedly been said to the appellant's de facto - whether the decision by the learned trial judge to exercise his discretion in this way had led to a miscarriage of justice CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where the appellant had been found guilty of unlawful carnal knowledge as an alternative to rape - whether it was reasonable for the jury to accept the evidence of the complainant that penile penetration had occurred while rejecting her evidence that such penetration had been non-consensual CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where appellant was convicted after a trial of unlawful carnal knowledge of a girl under 16 years of age in his care and sentenced to three and a half years imprisonment - where the appellant had a minor criminal history - where the…