SUPREME COURT OF QUEENSLAND
CITATION:
R v IE [2013] QCA 291
PARTIES:
R
v
IE
(appellant)FILE NO/S:
CA No 319 of 2011
DC No 1911 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
4 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
10 September 2013
JUDGES:
Margaret McMurdo P and Muir and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal allowed.
2. Convictions set aside.
3. Retrial ordered on all counts.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of three counts of indecent treatment of a boy under 14 years and four counts of sodomy – where the complainant is the younger brother of the appellant’s wife – where the offences involved touching, masturbation and sodomy of the complainant – where the offences occurred from approximately 1970 to 1977 – where the complainant made a preliminary complaint to his wife in 1994 and then confronted the appellant with the allegation in 1997 – where the complainant first contacted the police in 2008 at which stage there was a pretext call made – where the learned trial judge held that the responses made by the appellant during this telephone call were capable of being construed by the jury as admissions of generalised sexual abuse – where the appellant’s primary submission is that his statements in the telephone call were equivocal to a point that they could not be construed as admissions of anything – where the appellant also submitted that the probative value of the evidence was slight and was outweighed by its prejudice to him due to the equivocality of the evidence itself – where the trial judge took account of aspects of the evidence which the appellant submitted characterised it as equivocal and declined to exercise the discretion to exclude it – whether the trial judge erred in admitting the pretext phone call into evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where evidence of a pretext call between the complainant and the appellant was held to be admissible during a voir dire and subsequently led at trial – where the appellant contends that the trial judge erred in directing the jury that it could be regarded as containing admissions but did not state that it could only be regarded as admissions to generalised sexual abuse rather than to the specific offences charged – where the appellant also contends that the jury was not instructed adequately as to the standard of proof to which it needed to be satisfied in order to find that the appellant was admitting to generalised sexual abuse of the complainant – whether directions inadequate – whether the inadequacy of…
Continue reading R v IE
Sign in free to access the full text
- AGLC
- R v IE [2013] QCA 291
- Case
- [2013] QCA 291
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge erred in admitting the pretext call into evidence and whether the directions given to the jury were adequate. The court found that the trial judge did not err in admitting the pretext call, despite the appellant’s argument that the responses made during the call were equivocal and had slight probative value. The court also found that the trial judge did not err in directing the jury that the call could be regarded as containing admissions of generalised sexual abuse, and that the directions given to the jury were adequate. The court did, however, find that the appellant’s contention that the verdicts were unreasonable or could not be supported having regard to the evidence was well founded. The court found that the delay in making the complaint, inconsistency in the evidence of the prosecution witnesses, and improbability rendered the verdicts of guilty as unsafe and unsatisfactory.
The court also found that the trial judge erred in allowing the jury to consider Count 4 of the indictment, as the particulars for this count stated that it was the first act of anal penetration, whereas the complainant gave evidence of a previous act of anal penetration. The court found that this count should have been taken from the jury. The court found that the particulars for Count 4 were not accurate and that the trial judge should have excluded this count from the jury’s consideration. The court found that this error was significant and amounted to a miscarriage of justice.
The appeal was allowed, the convictions were set aside, and a retrial was ordered on all counts. The court found that the appellant’s appeal was well founded and that the convictions should be set aside. The court found that the errors made by the trial judge amounted to a miscarriage of justice and that a retrial was necessary to ensure a fair trial for the appellant. The court ordered a retrial on all counts, and the appellant’s convictions were set aside.
Orders
Orders of the court
1. Appeal allowed.
2. Convictions set aside.
3. Retrial ordered on all counts.
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.